S BHYRAPPA Vs. MYSORE CITY CORPORATION

JUDGEMENT

(1.) This is a plaintiff's second appeal aggrieved by the judgment and decree dated 23.2.2008 of the IV Additional I Civil Judge (Jr.Dn.), Mysore, dismissing O.S. No. 326/2006 and the judgment and decree dated 15.6.2010 of the V Additional District Judge. Mysore, dismissing R.A. No. 1129/2009. The appellant instituted O.S. No. 326/2006 arraigning the respondent as defendant, for the following reliefs:

(2.) The plaintiff asserted to be the absolute owner of the suit schedule property having constructed the same after obtaining a Commencement Certificate from the Mysore Urban Development Authority and a license from the defendant and an order dated 05.05.93 of regularizing the illegal construction of the building, by levy of penalty by the Mysore Urban Development Authority, at the instance of the neighbour, who instituted O.S. No. 87/1992 for demolition of unauthorised construction, which was dismissed on 27.11.1993. It is further asserted that the construction of the building, the plaintiff, though in law is not required to secure a Completion Certificate under Section 310 of the Karnataka Municipal Corporation Act, 1976, (for short, 'the Act'), put to use the building for commercial activity, whence the State Bank of India was inducted as a lessee, action was initiated by one Mysore Grahakara Parishata and the defendant-Corporation stopped the erection of the communication tower by Reliance Company over a portion of the suit schedule property measuring 30' x 40', let out on lease at Rs. 8,000/- per month for 20 years, on the premise that the building did not have the Completion Certificate. It was alleged that non-obtaining of the Completion Certificate does not per say make the premise an illegal construction and that the defendant had no jurisdiction to demand double the tax and refuse to receive the normal tax. At paragraph 8 of the plaint, it is stated that the suit is for a declaration that demand of double the tax is illegal, unauthorised and without legal sanction.

(3.) The defendant, on notice, entered appearance and resisted the suit by filing a written statement asserting that the suit was not maintainable since the plaintiff has an alternative and efficacious remedy of questioning the demand of tax in an appeal proceedings under the Act. In addition, it was contended that the license and sanction of plan dated 31.5.1991. though, was for constructing a residential building nevertheless the plaintiff erected a commercial complex in violation of the sanctioned plan, the zoning regulations under the comprehensive development plan, as also the licence. It was asserted that having not obtained the Completion Certificate from the defendant as contemplated by the Act, the lease of the premises was in violation of the provisions of the Act. In addition it was contended that though the Mysore Urban Development Authority for short 'MUDA' regularised the illegal construction on 5.5.1993 by levying a penalty, as approved, by the Government in its Order dated 13.1.1994, nevertheless, this Court in W.P. No. 7627/1994 quashed the Government Order.