Karnataka High Court
Sri H P Suryanarayanachari vs Karnataka Lokayukta on 17 October, 2014
Bench: N.K.Patil, Rathnakala
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF OCTOBER 2014
P RESENT
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MRS. JUSTICE RATHNAKALA
WRIT PETITION NO.32186 OF 2014 (GM)
BETWEEN:
SRI H.P.SURYANARAYANACHARI
S/O.PRASANNACHARI
AGED ABOUT 65 YEARS,
HOODI VILLAGE,
K.R.PURAM HOBLI,
BANGALORE - 48.
REPRESENTED BY HIS GPA HOLDER,
SRI. SOMU H.S.
S/O. H.P.SURYANARAYANACHARI. ...PETITIONER
(BY SRI V.N.MADHAVA REDDY, ADV.)
AND:
1. KARNATAKA LOKAYUKTA,
M.S. BUILDING,
BANGALORE - 560 001
BY ITS REGISTRAR.
2. THE JOINT COMMISSIONER,
B.B.M.P.,
MAHADEVAPURA,
BANGALORE - 560 048
2
3. H.L.SHASHIKUMAR,
S/O. LAKSHMINARAYANA SHETTY,
AGED ABOUT 32 YEARS,
NO.16, 1ST CROSS,
HOODI,
BANGALORE - 560 048. ...RESPONDENTS
(BY SRI G. DEVARAJ, ADV. FOR R1;
SRI K.V.NARASIMHAN, ADV. FOR R2;
SRI M.S.VARADARAJAN, ADV. FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO GRANT INTERIM
ORDER TO STAY ALL PROCEEDINGS IN PURSUANCE OF THE
ORDER AT ANN-C THE ORDER BY THE R1 DT.22.04.2014, ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 13/10/2014 AND COMING ON
FOR PRONOUNCEMENT OF ORDERS THIS DAY,
RATHNAKALA J., MADE THE FOLLOWING:-
ORDER
The order passed by the Karnataka Lokayuktha dated 22.4.2014 on the complaint of the third respondent herein is under challenge in this Writ Petition, whereby the note put up by the office of the Lokayuktha is endorsed as approved by the Lokayuktha.
2. A complaint came to be lodged by third respondent/a private individual on 11.7.2013 before the Karnataka Lokayuktha against the Joint Commissioner, 3 B.B.M.P., Mahadevapura, Bangalore. The allegations in the complaint read that, the owner of Sy.No.179/2 i.e., the petitioner herein has blocked the pathway, which leads to the complainant's lands in Sy.Nos.180 and 182/1A and by encroaching the cart pathway, he is putting up construction. The construction has caused hardship to the public and also the owners of the abutting lands. Despite submitting complaint to the Joint Commissioner, BBMP, no action is taken.
3. The complaint was allotted to ARE-1 for scrutiny. Subsequently, the file was re-allotted to ARE-9 vide order dated 11.4.2014 of Lokayuktha for putting forth scrutiny note on the action to be taken in the matter.
4. It appears, on receipt of the note from the office of the Lokayuktha, the Joint Commissioner, B.B.M.P. submitted his comments to the effect that:
"On 1.10.2013 a recommendation is made to the Additional Director, Town Planning to cancel the plan sanctioned for the construction of the said building and that the plan sanctioned would be 4 cancelled immediately after the receipt of approval from the chief office."
The ARE-9 put up his comments at para-34 and 35 vide note dated 22.4.2014, which read thus:
"34. The complainant has not submitted his comments inspite of affording sufficient opportunity. The comments offered by the respondent have gone undenied. Therefore, under these circumstances, this complaint can be disposed of by giving a direction to the respondent to cancel the plan sanctioned for the construction of the building in favour of the owner of the land bearing Sy.No.179/2 of Hoodi village, in accordance with law and for removal of the encroachment, if any, on the road in question within 4 months from the receipt of this order and to submit a compliance report within 15 days thereafter to the Registrar, Karnataka Lokayuktha, Bangalore.
35) Therefore, if approved, kind orders may please be passed to dispose of this complaint with a direction to the respondent to cancel the plan sanctioned for the construction of the 5 building in Sy.No.179/2 of Hoodi village and to get removed the encroachment in the pot kharab area of 5 guntas of land (road) within 4 months from the date of receipt of this order and to submit a compliance report within 15 days thereafter to the Registrar, Karnataka Lokayukta, Bangalore."
The same is approved by the Lokayuktha vide endorsement dated 22.4.2014.
5. The petitioner herein is the owner of Sy.No.179/2 of Hoodi village.
6. Sri.Madhava Reddy, learned Counsel appearing for the petitioner submits that, the impugned order is an order passed without jurisdiction. The proper authority in the matter of a road or a pathway in a particular survey number is Revenue Authorities and without calling for the report from the Revenue Authorities, the order passed is vitiated. The Revenue Authorities acting under Section 68 of the Karnataka Land Revenue Act have cancelled the right of pathway, if any, after inspection of the spot and the same is 6 published in the Karnataka Gazette dated June 14, 2001. Till now there is no challenge to the said order. The impugned order is passed exparte without affording opportunity to the petitioner to have his say in the matter. Hence, it is violative of principles of natural justice.
7. The respondents do not dispute that it is an exparte order passed without hearing the owner of the property/the petitioner herein.
8. The petitioner has produced the photographs evincing that the construction is in progress on the site. Sri.Madhava Reddy submits, by virtue of the above exparte order, if the second respondent were to cancel his licence unilaterally, the petitioner will be put to extreme hardship.
9. As per the Gazette publication dated 14.6.2001 issued from the office of the Tahsildar, the cartway ('B' kharab) is not used by public. Objection in this regard was called for by public notice dated 29.11.2000. Since no objection was received, the pathway, which is found in the 7 sketch, is cancelled under Karnataka Land Revenue Act, 1964.
10. On a careful consideration of the order impugned, what is proposed in the comments of ARE-9 in his office note at para-34 is, if the owner of Sy.No.179/2 is found encroaching the road, his licence may be cancelled in accordance with law and consequently, removing the encroachment. But, in para-35, a positive direction to cancel the sanctioned plan is proposed, which does not flow from the intent and language at Para 34.
There cannot be an order to cancel the building licence already given to an individual without calling upon him to have his say in the matter. Para-35 of the impugned office note is not in continuation of the proposal made at para-34 wherein it intends that the sanctioned plan may be cancelled in accordance with law for removal of encroachment, if any, on the road in question. Without ascertaining firstly whether or not, said road was in existence as on the date of issue of building licence and without giving audience to the 8 owner of the land/petitioner, no order can be passed to cancel the plan and to remove the encroachment. Though we find no infirmity in the proposal made at para-34 of the note/comments of ARE-9, since para-35 of the same comments deviates from para-34 in proposing direction to the B.B.M.P to cancel the plan sanctioned and remove the encroachment, that too without any reference to the opportunity the owner of Sy.No.179/2/petitioner is entitled to, and approved by the Lokayuktha in its entirety is one sided and has definitely caused great hardship and inconvenience to the petitioner. Dehors Para-35, the approval granted by the Lokayuktha to the rest of the impugned comment is harmless and does not call for intervention; consequently, para-35 of the impugned comments is liable to be set aside as violative of principles of natural justice and illegal.
Accordingly, this Writ Petition is disposed of. The scrutiny note of ARE-9 approved by Lokayuktha on 22.4.2014 at para-35 is set aside. The second respondent/the Joint Commissioner, B.B.M.P. is directed to 9 afford opportunity to the writ petitioner within six weeks from today and consider the same before taking any further action in the matter.
Sd/-
JUDGE Sd/-
JUDGE KNM/-