Sri. Abdul Aleem and Smt. Rehana Sultana V. Skyline Manor Owners' Apartments Association

MFA/5063/2022

AI Insights

The case revolves around a dispute between the owners of apartments in Skyline Manor Condominium and the Skyline Manor Owners' Apartments Association, concerning unauthorized construction by the defendants that allegedly violated the Deed of Declaration, byelaws, and the Karnataka Apartment Ownership Act, 1972. The plaintiffs sought a temporary injunction to restrain the defendants from continuing these constructions, which they claimed affected their rights to light, air, and privacy, and compromised the structural integrity of the building. The trial court granted the injunction, leading to the defendants' appeal.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 798756 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 14-11-2022
• Assessment Year: misc
• Other Referred Cases: Dhulabhai and Ors. v/s State of Madhya Pradesh and Anr., Vora Automobiles v/s Gopal Rao, State of Karnataka v/s H.J.Shakunthalamma, State of Andhra Pradesh v/s Manjeti Lakshmikanth, Ananthaswamy v/s Smt.Radha Srinath and Anr., Cotton Corporation of India v/s United Industrial Bank, Mohammed Mehtab Khan v/s Khushunma Ibrahim and Ors., Fatima Joao v/s Village Panchayat of Merces and Ors., Benedito Souza v/s Catano Rosario Estibeiro and Ors., B.Raghunandan Saran v/s Kanta Devi and Ors., Krishna Kali Mallik v/s Babulal Shaw and Ors., P. Saina and Ors. v/s Konderi and Ors., Ramkanya Bai and Ors. v/s Jagdish and Ors., Kuldip Singh v/s Subhash Chander Jain and Ors.
• Laws Referred To: Karnataka Apartment Ownership Act, 1972, Code of Civil Procedure, 1908, Karnataka Municipal Corporation Act, 1976, Bruhat Bengaluru Mahanagara Palike Act, 2020
• Result in Favour of: Respondent
• Court: HIGH COURT
• Department Lawyers: LOMESH N; SRINIVAS
• Assessee Lawyers: S P KULKARNI; SRIKANTH K; CHANDRAKANTH K
• Keywords: Civil Court Jurisdiction; Illegal construction; Temporary injunction; Easementary rights; Building byelaws
• Section: 39(1); 39(2); 321(1); 321(2)

Judgement Text

" 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2022 BEFORE THE HON’BLE MR. JUSTICE RAVI V. HOSMANI MISCELLANEOUS FIRST APPEAL NO.5063 OF 2022 (CPC) BETWEEN: 1. SRI. ABDUL ALEEM S/O LATE ABDUL RASHEED AGED ABOUT 53 YEARS R/A FLAT NO.002 SKYLINE MANOR NO.7 & 8 BRIDE STREET RICHMOND TOWN BENGALURU-560 025. 2. SMT. REHANA SULTANA W/O SRI ABDUL ALEEM AGED ABOUT 45 YEARS R/A FLAT NO.003 & 301 SKYLINE MANOR NO.7 & 8 BRIDE STREET RICHMOND TOWN BENGALURU-560 025. …APPELLANTS [BY SRI S.P.KULKARNI, SENIOR COUNSEL FOR SRI SRIKANTH PATIL K., & SRI CHANDRAKANTH PATIL K., ADVOCATES (PH) ] AND: SKYLINE MANOR OWNERS' APARTMENTS ASSOCIATION, AN ASSOCIATION FORMED BY VIRTUE OF ALLEGED DEED OF DECLARATION 2 EXECUTED UNDER KARNATAKA APARTMENT OWNERSHIP ACT, 1972 PROPERTY NO.7 & 8, BRIDE STREET, BENGALURU-560 025. REP. BY ITS PRESIDENT SRI. P.S.PONNAPPA. …RESPONDENT [BY SRI LOMESH KIRAN N., ADVOCATE FOR SRI SRINIVAS L., ADVOCATE (PH)] THIS MISCELLANEOUS FIRST APPEAL FILED UNDER ORDER 43 RULE 1(r) OF CPC., AGAINST THE ORDER DATED 13.04.2022 PASSED ON I.A.NO.1 IN O.S.NO.647/2022 ON THE FILE OF THE LXIX ADDITIONAL CITY CIVIL AND SESSIIONS JUDGE, BENGALURU, (CCH-70) ALLOWING I.A.NO.1 FILED U/O 39 RULE 1 AND 2 OF CPC. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 12.10.2022, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: JUDGMENT Challenging order dated 13.04.2022 passed on I.A.No.1 by LXIX Addl. City Civil and Sessions Judge, Bengaluru (CCH-70), in O.S.No.647/2022, this appeal is filed by defendants no.1 and 2. 2. O.S.no.647/2022 was filed seeking for declaration that members of plaintiff association are entitled to easementary rights 3 in respect of passage of air and light, right to privacy necessary for full and uninterrupted utilization and enjoyment of their respective apartment units in ‘A’ schedule property and for permanently restraining defendants from undertaking action in violation of Deed of Declaration and bye-laws and provisions of Karnataka Apartment Ownership Act, 1972 (hereinafter referred to as ‘KAO Act’ for short) in ‘A’ schedule property from carrying out illegal construction and for mandatory injunction directing defendants to remove all illegal construction which are not in accordance with sanctioned plan and violate easementary rights of members of plaintiff association etc. 3. Along with plaint, plaintiffs had filed interim application I.A.no.I under Order XXXIX Rule 1 and 2 of Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’ for short) for restraining defendants from undertaking any action which were in violation of Deed of Declaration, byelaws and provisions of KAO Act and from carrying out illegal construction as exhibited in documents no.9, 12 and 13 colly in schedule ‘C’ property in violation of easementary rights of member of plaintiff association. In affidavit filed in support 4 of application, it was stated that plaintiff was an association consisting of members who were apartment owners of Skyline Manor Condominium Residential Apartment Building (hereinafter referred to as ‘Apartment Complex’ for short) constructed on land bearing municipal nos.7 and 8 (old no.6) Bride Street, Langford Road, Richmond Road, Corporation Ward no.76, Bengaluru, which was ‘A’ schedule property. 4. It was stated that erstwhile owner ‘A’ schedule property viz., Mr. Attar Syed Zakir Hussain executed Deed of Declaration dated 12.10.2000, in respect of ‘A’ schedule property and submitted same under KAO Act and became a member of plaintiff association. Deed contained byelaws regulating conduct of members of plaintiff association inter se and for managing administrative and financial affairs of Apartment Complex. It also provided for management and maintenance of common amenities, facilities and open spaces. It was further stated that President of association was authorized to file suit on its behalf under letter of authorization dated 25.01.2022. 5 5. It was stated that Apartment Complex was constructed in pursuance of agreement dated 17.07.1997 with Skyline Construction Ltd. Construction company obtained sanctioned plan and building licence from Bruhat Bengaluru Mahanagara Palike (hereinafter referred to as ‘BBMP’ for short) and constructed Apartment Complex consisting of 12 parking spaces for 12 apartments at three apartments each on ground, first, second and third floors. It was further stated that defendant no.1 was owner of apartment nos.002 and 003 on ground floor, while defendant no.2 was owner of apartment no.301 on third floor of Apartment Complex. However, ownership rights acquired under respective sale deeds were subject to terms and conditions contained therein and also Deed of Declaration and as members of plaintiff association, defendants were obliged to adhere to same. Though defendant no.2 was present owner of apartment bearing no.301, she failed to share copy of sale deed with association inspite being obliged to do so under byelaws. 6. It was specifically stated that defendants repeatedly flouted Deed of Declaration and byelaws and undertook illegal 6 construction inside Apartment Complex over common areas and open spaces in gross violation of rights of other members of Apartment Complex and their rights. It was asserted that between year 2013 and 2015, residents of Apartment Complex had addressed several complaints to BBMP intimating illegal construction undertaken by defendants setback and open areas including garden area around two apartments bearing nos.002 and 003 on ground floor. Though BBMP under its confirmatory order dated 03.10.2015 directed building owner to bring it in accordance with sanctioned plan by demolishing all portions in violation, defendants failed to comply with same. Thereafter, in January 2021, defendants once again commenced construction on terrace above mezzanine floor owned by them in third floor without informing plaintiff association about any prior permission obtained from BBMP for erection of additional structures despite knowing it to be in contravention of law and litigation was pending regarding contravention in respect of ground floor. It was specifically stated that illegal construction on terrace consisted of putting up two additional floors by putting up walls for constructing rooms on fourth and fifth floors as permanent structures which were not 7 sanctioned. Defendants failed to stop illegal construction despite request by members of plaintiff association and attempting to mislead them by informing them that it was for internal construction. When defendants deployed heavy machinery broke down several walls and roof resulting in noise and vibration throughout structure of Apartment Complex without regard to its safety and stability, members of plaintiff association complaint to association. Thereafter, though plaintiff association had called upon defendants to provide any plan or prior approval from BBMP in respect of ongoing construction, defendants did not respond. It was specifically asserted that since date of construction in year 2000, apartment owners were enjoying easementary rights by way of prescription in respect of right of way, right of access to light and air and of privacy and against disturbance, illegal construction put by defendants violated their easementary rights as well as Deed of Declaration and byelaws. It was further asserted that additional illegal construction would affect safety and structural integrity of Apartment Complex whose foundation cannot bear weight of additional floors thereby endangering their life. It was further specifically asserted that during December 2021, defendants had 8 dug up 6 ft. X 10 ft. and 12 ft. X 12 ft. wide trench right next to foundation of Apartment Complex which further undermined structural integrity of Apartment Complex and endangering human life’s of residents of Apartment Complex and therefore sought for ex-parte order of temporary injunction. 7. On consideration, learned trial judge had granted ex-parte order of temporary injunction. 8. On service of notice, defendants filed written statement and adopted same as their objections to I.A.no.I. They also filed I.A under Order XXXIX Rule 4 of CPC, to vacate ad-interim order. In their written statement/objections, defendants firstly contended that plaintiff being an unregistered association could not maintain suit. It was also contended that no cause of action accrued to plaintiff to file suit and that its remedy lay elsewhere than before Civil Court. It was stated that schedule ‘B’ and ‘C’ property were not common areas and defendants were absolute owners of same. At time of signing joint development agreement, between developer and owner of suit schedule ‘A’ property, it was specifically mentioned that five apartments namely apartment nos.002, 003, 9 301, 302 and 303 would have inclusive garden area allotted to them. It was also alleged that plaintiff i.e., plaintiff himself was raising unauthorized construction contrary to sanctioned plan. It was contended that plaintiff and other flat owners had made similar allegations before Karnataka Appellate Tribunal in Appeal no.1024/2015 which ended in favour of defendants which was suppressed by plaintiff. It was also stated that efforts were made to drive defendants out of apartment by instigating agencies such as BBMP and Police Task Force etc., and failed. It was specifically stated that defendants was absolute owner of 301 on third floor with super built area of 2390 sq.ft. with inclusive use of adjoining terrace and garden area measuring 1012 sq.ft. It was contended that apartment was a duplex of third and fourth floor with garden area on roof top i.e. on fourth floor which would be in exclusive possession and ownership of defendants and there was no common passage or access or approach to any other person than owner of apartment no.301. Therefore, plaintiff had no right over same and could not maintain suit against true owner. 10 9. It was further stated that earlier vendor Smt. Mubasheera Begum had erected light pillars made of steel, which had began to rust. This prompted defendant to change roof top with reinforcement to avoid danger and same was done on inclusive portion belonging to defendant over which plaintiff had no right. It was also specifically asserted that plaintiff himself was constructing fourth floor in flat no.302 and to cover up said illegal construction, instant suit was filed. While denying other plaint averments, defendant admitted plaint averments that Apartment Complex was constructed in accordance with sanctioned plan and on finding it fit for human occupation, BBMP had issued occupation certificate. Allegation of construction affecting safety and stability of Apartment Complex and affecting easementary rights of members of plaintiff association etc. were denied. Allegation of defendants digging up 6 ft. X 10 ft. and 12 ft. X 12 ft. trenches affecting structural stability of Apartment Complex were denied. It was stated that same was for better utilization of open areas including garden. Claim of plaintiff of fourth floor terrace being common area was denied. 11 10. On consideration of rival contentions, trial Court framed following points for its consideration: 1. Whether the plaintiff has made out prima- facie case to allow I.A. U/o 39 Rule 1 and 2 for temporary injunction? 2. Whether the plaintiff shows that the balance of convenience lies in their favour? 3. Whether the plaintiff shows that if IA is not allowed they will be put to irreparable loss and hardship? 4. Whether the defendants have made out grounds to allow I.A. filed U/Order 39 Rule 4 of CPC? 5. What order? 11. On consideration, trial Court allowed I.A.no.I granted temporary injunction till disposal of suit and dismissed I.A filed by defendants under Order XXXIX Rule 4 of CPC. 12. Challenging same, this appeal is filed by defendants no.1 and 2. 13. Sri. S.P.Kulkarni, learned Senior counsel appearing for Sriyuths Srikanth Patil and Chandrakanth Patil, Advocates for appellants submitted that on 12.10.2000, original owner of ‘A’ 12 schedule property executed Deed of Declaration and submitted same under provisions of KAO Act. Clause 3 mentions that building consist of 12 car parking spaces in basement and 12 apartments at three residential apartments each on ground and three upper floors. As per clause 5, total building area would be 2,000.65 sq.mts. (21,527 sq.ft.) of which 1714.22 sq.mts. (18,445 sq.ft.) would constitute apartments and 286.43 sq.mts. (i.e. 3082 sq.ft.) would constitute general and or restricted common areas and facilities. As per clause 6, apartment nos.002 and 003 were assigned exclusive right to use garden area of 1464 sq.ft. each. Likewise apartment no.301 on third floor was assigned 1012 sq.ft of terrace area. Clause 7A, described common area and facilities as follows: “The land described in clause 2 of this deed are excluding i) all the Apartment built up areas and ii) Basement parking areas allotted to such apartment owners for their exclusive use, iii) Garden area allotted to such apartment owners for their exclusive use., iv) Terrace area allotted to such apartment owners for their exclusive use.” 14. Therefore, when defendant no.2 purchased apartment no.003 on 24.09.2003, she had exclusive right to use 1464 sq.ft of garden area adjoining said apartment. Same was also mentioned in schedule of sale deed. Likewise when defendant no.1 purchased 13 apartment no.002 on 29.09.2004, he was assigned exclusive right to use 1464 sq.ft. of garden area adjoining it. When defendants together purchased apartment no.301 on 01.09.2015, they got inclusive right to use 1012 sq.ft. of terrace area adjoining apartment on third floor. 15. Learned Senior counsel further submitted that insofar as violation of sanctioned plan and building byelaws, on 07.08.2015, BBMP issued notice under Section 321(1) and on same day, passed provisional order under Section 321(2) of Karnataka Municipal Corporation Act, 1976 (hereinafter referred to as ‘KMC’ Act for short). It was submitted that said order was passed directing Sri. Zakir Hussain, husband of vendor of defendants to remove illegal construction and bring same in compliance with sanctioned plan and building byelaws. It was submitted that since action was initiated by Corporation (BBMP), there was ouster of jurisdiction of Civil Court to entertain suit about violation of sanctioned plan and building byelaws. It was submitted that since maintainability of suit was an issue, trial Court was not justified in granting temporary injunction. It was submitted that even Bruhat 14 Bengaluru Mahanagara Palike Act, 2020 (hereinafter referred to as ‘BBMP Act’ for short) successor enactment to KMC Act insofar as area within BBMP, also contained provisions similar to those under KMC Act authorizing authorities to initiate action against violation in Sections 247, 248 and 249 respectively and therefore, ouster of jurisdiction of Civil Court would have to be implied. 16. It was also contended that plaintiff owner of apartment no.302 had also raised illegal construction for which BBMP had initiated action under Section 321 of KMC Act and directed him to remove illegal structure. It was alleged that plaintiff had also put up construction like shed and room on fifth floor terrace in common area which belonged to all apartment owners. Since plaintiff himself was guilty of putting up construction in violation of sanction plan and building byelaws, it did not lie in his mouth to point fingers at others and seek for order of temporary injunction against them. It was submitted that relief of injunction being discretionary relief, plaintiff himself being guilty of violation, he was disentitled from seeking discretionary relief. It was submitted that as trial Court had 15 failed to consider these material aspects, impugned order suffered from substantial errors and called for interference. 17. In support of his submissions learned Senior counsel for appellants relied upon following decisions for respective propositions: Sl. No. Citation Propositions of Law 1. AIR 1969 SC 78 Dhulabhai and Ors. v/s State of Madhya Pradesh and Anr. Section 9 of CPC - Broad Principles of exclusion of Civil Court jurisdiction tabled in this case at paras 32 -35. Jurisdiction of Civil Courts – Case law summarized – when the statute provides machinery for ventilating the grievances – Civil Court remedy cannot be granted – however the exclusion of jurisdiction of Civil Court not readily to be inferred unless the conditions in the statutory provisions are interpreted. 2. AIR 1993 Bombay 151 Vora Automobiles v/s Gopal Rao Though there is no Express Bar or exclusion to try the case – the question whether the jurisdiction is ousted because of statute having created special remedy or right – has to be examined in light of law laid down in AIR 1969 SC 78. If there is a special remedy, 16 3. 2008 (1) KCCR 16 State of Karnataka v/s H.J.Shakunthalamma In revenue matters jurisdiction of Civil Courts is barred as it is special Act. 4. AIR 2000 SC 2220 State of Andhra Pradesh v/s Manjeti Lakshmikanth Though normal rule is that civil Court has jurisdiction, exclusion under Special Enactments, would be a question of interpretation by reference to provisions and machinery provided for adjudication. 5. ILR 2010 (2) Kar. 2204 Ananthaswamy v/s Smt.Radha Srinath and Anr. - do - 6. AIR 1983 SC 1272 Cotton Corporation of India v/s United Industrial Bank Where main prayer cannot be granted, interim prayer also cannot be granted. 8. ILR 1994 (3) Kar. 1715 (Jayanthi Padakone v/s ICDC - do - 9. AIR 2013 SC 1099 Mohammed Mehtab Khan v/s Khushunma Ibrahim and Ors. Interim order requires to be considered with highest degree of satisfaction. 18. On other hand, Sri. Lomesh Kiran N, appearing for Sri. L. Srinivas, counsel for plaintiff – respondent opposed appeal and sought for its dismissal. It was submitted that plaintiff was an association consisting of members, who were apartment owners of Skyline Manor Condominium. In respect of apartment, Deed of Declaration was signed on 12.10.2000 and submitted under KAO Act. Said deed, regulated conduct of apartment owners/members of 17 plaintiff association. If any apartment owners were to act in contravention of Deed of Declaration and byelaws, plaintiff had every right to file suit for injunction and for damages. It was submitted that plaintiff association was registered under KAO Act and as such was competent to file suit on behalf of owners of apartment units. Therefore, there was no merit in contentions of defendants that suit filed by plaintiff was not maintainable. 19. Referring to specific violation of building byelaws, it was submitted that sanctioned plan issued by BBMP permitted construction of ground plus three floors. However, as per photographs produced, there was attempt for construction of fourth floor and fifth floor, that to on terrace area which was common area for all apartment owners. It was submitted that rights of owners of each of apartment was subject to terms and conditions and common areas and open spaces were required to be used in accordance with rules and regulations determined by plaintiff association under Deed of Declaration. Apartment owners were mandated not to obstruct access to common areas. It was specifically contended that right of defendants in respect of terrace 18 was an inclusive right. It was never meant to be ‘exclusive’ i.e. to exclusion of other apartment owners as erroneously understood by defendants. While passing impugned order, trial Court rightly appreciated facts and circumstances, wherein it stated that defendants had commenced construction without informing plaintiff association and without obtaining any prior permission from BBMP proceeded to erect additional structures which would not only be per se illegal but also by encroaching upon common areas which were required to be held in common by all apartment owners. Therefore, easementary rights namely right of way, access to light, air and of privacy were sought to be invaded. It was further submitted that use of heavy construction material like cement, steel beams etc. indicated that it was permanent in nature and which would directly strain safety and durability of superstructure of Apartment Complex. Foreseeing imminent danger, plaintiff had sought for temporary injunction. Appreciating prima facie case, balance of convenience and irreparable loss and injury if construction were not restrained, trial Court had rightly granted temporary injunction. Since plaintiff was seeking to protect and 19 enforce civil rights and easementary rights of its members, suit was maintainable and impugned order did not call for any interference. 20. It was submitted that law regarding ouster of jurisdiction of Civil Court was well settled right from Constitution Bench decision of Hon’ble Supreme Court in Dhulabai’s case (supra). It was submitted that exclusion of jurisdiction of Civil Court was not to be readily inferred and even where there was express bar of jurisdiction of Civil Court, scheme of Act to find adequacy and sufficiency of remedies provided under Act were required to be looked into. Since there was no express bar either under KMC Act or BBMP Act, there was no gainsay in contending that there was ouster of jurisdiction of Civil Court. It was further submitted that besides alleging violation of sanctioned plan and building byelaws, plaintiff was also asserting infringement of individual civil right, which it was entitled to enforce before Civil Court even without impleading Corporation as a party. It was also contended that under similar circumstances, this Court had confirmed injunction orders granted by Civil Courts against illegal construction including 20 illegal construction on terrace area. Therefore, there was no merit in appeal. 21. In support of his submissions learned counsel for respondent relied upon following decisions for respective propositions: Sl. No. Citation Proposition of Law 1. 2014 (4) KCCR 3820 Abhay Kewadkar v/s The Residence at Benson Town, Apartment Owners Association. 2. MANU/KA/4797/2019 Money Chambers Owners Association v/s B.R. Motors Private Limited and Ors. 3. ILR 2015 KAR 3085 Sandra Lesley Ann Bartels v/s Paul Manoharan Moses and Ors. In similar situation where injunction was sought against illegal construction in apartments, this Court had confirmed grant of injunction orders. 4. MANU/KA/1220/2018 M. Narayana Swamy v/s The Commissioner, Bruhat Bengaluru Mahanagara Palike and Ors. 5. MANU/KA/1893/2015 Anil John v/s Jagan M. Sheshadri and Ors. 6. AIR 2000 Bom 444 Fatima Joao v/s Village Panchayat of Merces and Ors. In case of assertion of infringement of a private civil right Civil suit was maintainable without Corporation as party. 21 7. MANU/MH/0482/2021 Benedito Souza v/s Catano Rosario Estibeiro and Ors. 8. AIR 1975 All B. Raghunandan Saran v/s Kanta Devi and Ors. 9. AIR 1965 Cal 148 Krishna Kali Mallik v/s Babulal Shaw and Ors. 10. AIR 1984 Ker 170 P. Saina and Ors. v/s Konderi and Ors. - do - 11. AIR 2011 SC 3258 Ramkanya Bai and Ors. v/s Jagdish and Ors. 12. AIR 2000 SC 1410 Kuldip Singh v/s Subhash Chander Jain and Ors. 13. AIR 1969 SC 78 Dhulabhai and Ors. v/s State of Madhya Pradesh and Anr. Jurisdiction of Civil Court under Section 9 of CPC was wide and ouster to be inferred only if there is specific bar in law. 22. Heard learned counsel. Perused impugned and order and record. 23. From above submission, it is not in dispute that defendants were owners of apartments no.002, 003 and 301 in Apartment Complex constructed on ‘A’ schedule property. It is also not in dispute that plaintiff was association of apartment owners 22 registered in terms of Deed of Declaration dated 12.10.2000 under KAO Act. While plaintiff contends that defendants were putting up construction on common and open areas in violation of sanctioned plan and building byelaws without obtaining permission from BBMP, which would affect easementary right of members of plaintiff association and therefore Civil Court had rightly granted temporary injunction after being satisfied of balance of convenience and irreparable loss and injury, it is case of defendants that since violation complaint were cognizable under provisions of KMC and BBMP Acts, there was implied bar of jurisdiction and since suit itself was not maintainable, order of temporary injunction granted by Civil Court was unsustainable calling for interference. 24. While passing impugned order, apart from noting plaint and written statement averments, trial Court observed that by virtue of Deed of Declaration defined under Section 3(j) and Section 7 of KAO Act, plaintiff association had authority to file suit for damages and for injunctive relief in case any member failed to comply with byelaws, rules and regulations. Therefore, it prima facie held suit was maintainable. 23 25. Insofar as application for injunction, it observed that specific allegation of plaintiff against defendants was about illegal construction of fourth and fifth floors as impermissible. It observed that as per sanctioned plan, fourth floor was opened terrace area. On perusal of sale deeds of defendants in respect of apartments no.002 and 003, it observed that there was assignment of right to use garden area abutting said apartments. Further, an extent of terrace area was assigned for inclusive use to apartment no.301. It observed that restrictions were imposed in sale deeds against construction in open areas and that photographs produced along with plaint showed construction being put up on terrace area by defendants. It further observed that nature of construction indicated therein was permanent and not for carrying out repairs. It further observed that defendants failed to produce any sanctioned plan or permission from competent authority for construction of walls on terrace area. 26. It observed that since Apartment Complex constructed in year 2000 was 22 years old and there were restriction on construction being put up on common areas, question whether 24 plaintiff had right of access to terrace area or defendants had exclusive right over terrace and garden area would require trial. It took note of action initiated by BBMP regarding illegal construction. In light of allegation and counter allegation about violation of building byelaws by both parties, considering age of building and also sanctioned plan providing for only basement, ground and three upper floors, in absence of defendants obtaining permission for fourth and fifth floors, same would be illegal and cause danger to all residents, which could not be compensated. Therefore, it held prima facie case, balance of convenience and irreparable loss and injury in favour of plaintiff, subject to final result of suit. 27. Insofar as maintainability of suit and ouster of jurisdiction, it is not in dispute that there is no specific provision barring jurisdiction of Civil Court either in KMC Act or in BBMP Act. Hon’ble Supreme Court in Dhulabai’s case (supra) has laid down tests for examining said aspect, which are as follows: \"32. This brings us to the last case on the subject. That is the Kamla Mills case. That case was barred by a special Bench of Judges and is of more binding value than the others. Kamla Mills Ltd., was assessed to certain sales effected between 26 January 1950 and 31 March 1951 25 which the taxing authorities treated as “inside sales” and the Company claimed to be “outside sales” as determined under the Bengal Immunity Co. Ltd. v. State of Bihar [(1955) 2 SCR 603] . The judgment in the last cited case was delivered on September 6, 1955. The period for invoking remedies under the Bombay Sales Tax Act, 1946 under which the assessment was made had expired. A suit was, therefore, filed to claim refund. The Bombay Act contained Section 20 which read: “20. Save as is provided in Section 23, no assessment made and no order passed under this Act or the Rules made thereunder by the Commissioner or any person appointed under Section 3 to assist him shall be called into question in any civil court, and save as it provided in Sections 21 and 22, no appeal or application for revision shall lie against any such assessment or order.” The suit was dismissed on the preliminary point arising from this bar. A Letters Patent Appeal in the High Court of Bombay also failed. The case came before this Court on a Certificate. It was referred to a Special Bench because Section 20 was challenged as unconstitutional because it barred a suit even where the assessment was unconstitutional. This Court held that as there was adequate remedy to raise the question before the authorities by asking for rectification of the assessment, the section could not be said to deprive him of remedy in such a way as to render the section itself unconstitutional as was hinted in Raleigh Investment Co. case about Section 67 of the Indian Income Tax Act. We are not concerned with that question. 33. The next question which was considered was whether the jurisdiction conferred on the taxing 26 authorities included the jurisdiction to determine the nature of the transaction or was the decision about the character of the transaction, a decision on a collateral fact? This Court held that it was the former and not the latter. Therefore the decision was held to be merely an error in assessment which was capable of correction by the usual procedure of appeals etc. The bar of Section 20 was, therefore, held to apply. During the course of the arguments the Special Bench considered Basappa case and distinguished it from the Firm of Illuri Subayya Chetty case on the ground that the former was not barred by Section 18-A as it did not exist. The Special Bench, however, made an observation to the following effect: “In cases where the exclusion of the civil courts' jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of the remedies provided for by it may be relevant but cannot be decisive. But where exclusion is pleaded as a matter of necessary implication, such considerations would be very important and in conceivable circumstances, might even become decisive. If it appears that a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by Tribunals specially constituted in that behalf, and it further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, it becomes pertinent to enquire whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.” 34. The Special Bench refrained from either accepting the dictum of Mask & Co. case for 27 rejecting it, to the effect that even if jurisdiction is excluded by a provision making the decision of the authorities final, the civil courts have jurisdiction to examine into cases where the provisions of the particular Act are not complied with. 35. Neither of the two cases of Firm of Illuri Subayya or Kamla Mills can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows: (1) Where the statute gives a finality to the orders of the special Tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. 28 (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegality collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.\" 28. Said ratio is applied by this Court in H.J.Shakunthalamma’s case, Ananthaswamy’s case and Bhagavandas Patel’s cases (supra). It is reiterated by Hon’ble Supreme Court in Manjeti Lakshmikanth’s case (supra). Hon’ble High Court of Bombay in Vora Automobiles case (supra), has 29 upheld ouster of jurisdiction of Civil Court in cases of allegations of violation of building byelaws. 29. But, before embarking upon applicability of ratio in above decisions, whether suit is for enforcing building byelaws or for enforcing civil right of access to light and air, privacy would require to be examined. 30. In plaint, there is specific plea regarding illegal construction by defendants not only being in violation of building byelaws, but also about infringement of civil rights of apartment owners. Insofar as specific allegation about illegal construction on terrace in which defendants only had inclusive right, defendants cannot put up additional floors or permanent construction. It is further observed that even exclusive assignment of abutting garden area to owners of apartments no.002 and 003, would not enable them to dig trenches near foundation of apartment complex. 31. Admittedly, building in consideration is an Apartment Complex where no apartment can claim to be independent of others. Each apartment requires support of all others. Provisions of Deed of Declaration, KAO Act as well as sale deeds of respective 30 apartment owners mandate that each of them maintain their apartments so as to not affect structural stability, integrity and durability of building. Said obligations extend not only to common areas but also in respect of areas of exclusive user. Each apartment owner is therefore required to intimate, if not take permission of apartment association before commencing any alteration, repair or additional construction. 32. Therefore, though there is allegation of construction being in violation of building byelaws, it is incidental to main allegation that there was infringement of civil rights, in which case, there cannot be ouster of jurisdiction of Civil Court. 33. While passing impugned order, trial Court has categorically observed from photographs produced by plaintiff that defendants were putting up construction of fourth and fifth floors. Admittedly, apartment no.301 is on third floor. Though, there is no material produced to establish that it was a duplex apartment, defendants have contended it to be so. They have also claimed exclusive user over terrace area above their apartment. Though they have contended that earlier owner had installed steel pillars 31 which had rusted and therefore same were being replaced, allegation of plaintiff that in guise of repair, defendants were putting up heavy and permanent construction which would affect structural safety and stability of superstructure of Apartment Complex is probablised. Reasoning that if same is not prevented, plaintiff’s would suffer irreparable loss and injury by subjecting to danger to their life of all residents would be appropriate. Fact that plaintiff specifically alleged that defendants were making permanent construction without obtaining permission from plaintiff or authorities under BBMP is countered by defendants merely by asserting that construction was for repairs which would not require building permission would establish prima facie case in favour of plaintiff. Observation of trial Court regarding nature of construction would substantiate balance of convenience and irreparable loss and injury to plaintiff. 34. Hon'ble Supreme Court in case of Mohd. Mehtab Khan & Others Vs. Khushnuma Ibrahim Khan & Others1, regarding 1 (2013) 9 SCC 221 32 scope and jurisdiction, it has held that even if one of view taken by trial Court is possible view, there cannot be any interference. This Court in Abhay Kewadkar’s case, Money Chambers Owners Association’s case and Sandra Lesley Ann Bartels’s case, upheld grant of temporary injunction against construction in violation of Deed of Declaration and building byelaws. In M.Narayanaswamy’s case, a division Bench of this Court after referring to Vora Automobiles (supra) held that jurisdiction of Civil Court is not excluded as right of access asserted by plaintiff was in nature of private civil right redressal of which was not provided for in scheme of KMC Act. Further, in M.Narayanswamy’s case, Anil John’s case, Fatima Joao’s case, Benedito Souza’s case, B.Raghunandan Saran’s case, Krishna Kali Mallik’s and P.Saina’s cases, it is held that impleadment of Municipal Corporation was not required as civil suit would be maintainable against infringement of private civil right. Therefore, contention of learned Senior counsel for appellants for challenging impugned order would not hold much water. Point for consideration is, therefore answered in negative. 33 In the result, I pass following: ORDER Appeal is dismissed. Sd/- JUDGE GRD "