Karnataka High Court
Sri Saghir Ahmed vs Bruhat Bengaluru Mahanagara Palike on 7 April, 2016
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF APRIL 2016
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO.18596 OF 2015 (LB-BMP)
C/W
WRIT PETITION NO.3147 OF 2016
W.P.NO. 18596 OF 2015
BETWEEN:
SRI SAGHIR AHMED
S/O SRI. BASHEER AHMED KHAN
AGED 55 YEARS
NO.3/1A, MOSQUE ROAD,FRAZER
TOWN, BANGALORE - 560 005
BY GPA HOLDER
SHOEB AHMED,
42 YEARS, S/O BASHER AHMED KHAN,
REST -DO - ... PETITIONER
(BY SRI.T N RAGHUPATHY, ADV. )
AND:
1. BRUHAT BENGALURU MAHANAGARA PALIKE
REP. BY ITS COMMISSIONER,
CORPORATION CIRCLE,
BENGALURU - 02
2. ASSISTANT EXECUTIVE OFFICER
HOODI SUB DIVISION,
BRUHAT BENGALURU MAHANAGARA PALIKE,
BENGALURU - 48
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3. SMT. KAVITA
W/O SRI. SURESH PUTHANVEETIL
AGED 48 YEARS
R/AT NO.11, MAKARAJYOTHI
NARAYANA REDDY LAYOUT,
KARTHIKNAGAR,
DODDANAKUNDI
BENGALURU - 560 037 ... RESPONDENTS
(BY SRI.I G GACHCHINAMATH, ADV. FOR R1 & R2
SMT. KAVITA - PARTY IN PERSON)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
BBMP TO CULMINATE THE PROCEEDINGS INITIATED BY IT
UNDER SECTION 462 OF THE KARNATAKA MUNICIPAL
CORPORATION ACT AS PER ANN-H BY THE CONFIRMATION
ORDER DTD.29.11.2013 VIDE ANNEX-G BY TAKING ACTION
AGAINST THE ILLEGAL STRUCUTRE PUT UP BY THE R-3 HEREIN
ON THE PROPERTY MENTIONED IN SCHEDULE TO THIS W.P.
W.P.NO.3147 OF 2016
BETWEEN:
KAVITA PODWAL
AGED 49 YEARS,
NO.11, MAKARA JYOTI
NARAYANA REDDY LAYOUT
BEHIND ATLANTA SCHOOL
DODDANEKUNDI
BANGALORE - 560 037 ... PETITIONER
(BY SMT.KAVITA PODWAL - PARTY IN PERSON)
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AND:
1. THE BBMP
(REPRESENTED BY ITS COMMISSIONER)
CORPORATION CIRCLE
HUDSON CIRCLE
BANGALORE-560002
2. THE JOINT COMMISSIONER
MAHADEVAPURA ZONE, BBMP
BANGALORE - 560 048
3. THE ASSISTANT EXECUTIVE ENGINEER
HOODI SUBZONE, BBMP
BANGALORE - 560 048
4. THE ASSISTANT ENGINEER FOR WARD-85
HOODI SUBZONE, BBMP
BANGALORE - 560 048
5. DEPUTY DIRECTOR TOWN PLANNING
MAHADEVAPURA ZONE
BBMP, BANGALORE - 560 048
6. SRI SAGHIR AHMED
NO.3/1A, MOSQUE ROAD,FRAZER
TOWN, BANGALORE - 560 005 ... RESPONDENTS
(BY SRI.I G GACHCHINAMATH, ADV. FOR R1 TO R5;
SRI.T.N.RAGHUPATHY, ADV. FOR R-6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED NOTICE DT.18.11.2013 BY THE R-3 ENCLOSED TO
THIS PETITION AS ANNX-A AND QUASH THE IMPUGNED
ORDSER ISSUED U/S 321(3) OF THE KMC ACT OF 1976
DT.29.11.2013 ENCLOSED AS ANNX-B.
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THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 17.03.2016 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
The first writ petition (W PNo.18596/2015 (LB-BMP) is filed by the petitioner seeking direction to Bruhat Bengaluru Mahanagara Palike (B B M P for short) to culminate the proceedings initiated by it under Section 462 of the Karnataka Municipal Corporation Act followed by confirmation order dated 29.11.2013 by taking action against the illegal structure put up by the respondent No.3 herein on the property mentioned in property bearing HASB Khata No.471/counsel property No.88, measuring East to West 15 feet and North to South 40 feet and HASB Khata South 40 feet in total the property measuring East to West 40 feet and North to South 40 feet situated at Doddanakkundi village, K R Pura Hobli, Mahadevapura CMC, Ward No.29, Bangalore East Taluk.
2. The second writ petition (W P No.3147/2016 (LB-BMP) is filed by the third respondent in the first writ petition seeking 5 to quash the provisional order under Section 321(1) and (2) of Karnataka Municipal Corporation Act, 1976, hereinafter referred to as `the Act' for short and also the order of confirmation dated 29.11.2013 passed under Section 321(3) of the Act on various grounds.
3. The facts of the case in the first writ petition are that petitioner claims to be the owner in possession of property measuring 2 acres 5 guntas of land in Sy.No.88 situated at Doddanekkundi village, Varthur Hobli, Bengaluru East Taluk. The respondent No.3 is a Central Government employee working as Superintendent in Central Excise Department and her husband is working in ISRO as an officer. The respondent No.3 is residing in her own house at No.143, Shivanandanagar, (Shastrinagar), New Thippasandra Bengaluru.
4. The petitioner instituted suit in O S No.26414/2013 for the relief of declaration and permanent injunction. During pendency of the suit, the third respondent encroached portion of the property, constructed a house without obtaining any plan or licence. Petitioner thereby amended the suit by adding the relief 6 for possession also. It is stated that part of Sy.No.88 was purchased by the petitioner and whereas remaining portion owned by Suryakumar Sharma was acquired by Railway Department and Suryakumar Sharma has received compensation also. However, he supposed to have sold the property in favour of Respondent No.3 whereby respondent No.3 claims title to the property claimed by her.
5. The suit after contest came to be decreed. Being aggrieved, the Respondent No.3 has filed RFA No.372/2015. This court initially granted an order of stay and at the intervention of the petitioner, interim order was modified staying only that part of the order directing handing over possession of `B' schedule property.
6. The B B M P initiated proceedings u/s 321(1) and 321(2) of the Act by issuing notice dated 18.11.2013 followed by order of confirmation dated 29.11.2013. The respondent No.3 has not pulled down the structure and the BBMP took decision to demolish the structure. The BBMP cannot remain neutral. It has to do its statutory duty provided under Section 462 of the Act. 7 Every time when the BBMP wants to take steps, the respondent No.3 appears near the spot and takes the help of the highest constitutional functionary of the Central Government and gets the demolition stayed. There is no impediment for the BBMP to proceed with its obligation of demolishing the illegal structure.
7. The respondent No.3 filed statement of objections denying the petition averments. It is stated, under Section 52 of the Transfer of Property Act, proceedings so as to affect the rights of any other party thereto under any decree, the property cannot be transferred or otherwise dealt with any other party to suit, except under authority of the court. Relying upon Section 48 of the Transfer of Property Act she contends, where there are two successive transfers of the same property, the transfer effected later, must submit to the earlier.
8. It is submitted that the Corporation is not following up the work since the layout is approved by the HAL Sanitary Board which now comes under the jurisdiction of BBMP. During the transition there are lot of formalities to be complied by B B M P. There are several houses constructed without plan approval by 8 BBMP. However, the buildings were constructed as per the bye- laws, with clear setbacks and without deviation. The respondent No.3 also constructed 600 sq. ft., building, during 2006 in a land admeasuring 1600 sq. ft. which is very much within the purview of sanctioned limit and bye-laws. As such any action by BBMP will amount to administrative lapse and they are trying to set right things. A strict adherence of principles of natural justice and a part of procedure to be followed in a transition period of takeover by the BBMP in respect of 111 villages. All these villages which come under the jurisdiction of BBMP are lacking the procedure, lacuna to be set right by BBMP. The writ petition filed by the petitioner is highly illogical and illegal which deserves to be dismissed.
9. The petitioner purchased the land without identity and even without property. No sketch depicting the metes and bounds is available. The area claimed by the petitioner is having several houses and the vacant land is very less as against the claim of the petitioner. However, he obtained `A' khata by his influence. There is an appeal in Appeal No.13/2013 pending 9 before the Joint Commissioner, B B M P, for cancellation of khata issued to the petitioner.
10. The site owners filed injunction/declaration suit against the land owners who formed the layout during 1990-91 and sold sites which were decreed, against which the land owners preferred regular first appeals which are pending before this Court. The sale in favour of the petitioner is a fictitious sale. The impleading applications filed by the petitioner in the R.F.As. are pending for consideration.
11. The Respondent No.3 has purchased the site from Dr.Suryakumar Sharma by a registered sale deed dated 17.1.2005. After formation of layout the entire sites were sold out and no land was left. The legal heirs of Mr.Munimarappa sold 2 acres including 5 guntas of kharab to petitioner by a registered sale deed on 3.11.2005 using the agricultural documents and not the original deed. The sale deed of the third respondent is dated 17.1.2005 whereas that of the petitioner is 3.11.2005 about 10 months later from the date of purchase by the respondent No.3. The respondent No.3 is not the owner of 10 house at 143, Shivananda Nagar (Shastrinagar), New Thippasandra, Bengaluru. She resides in her house at `Makara Jyoti', House No.11, Narayana Reddy Layout, Karthik Nagar, Doddanekkundi, Bangalore 37, the subject matter of the writ petition.
12. It is submitted that the Schedule B property on which Respondent No.3 is dwelling is nowhere close to the railway property acquired by Salem Railways. In the suit it is stated that the property has been acquired by the B D A for ring Road whereas in the present petition it is stated that it has been acquired by the Railway Department. As per the RTC, the railway acquired land in Sy.No.88 way back in 1969-70, more than 21 years prior to vendors of the petitioner sold B schedule property to Dr.Sharma. There is no demolition order on the dwelling house of the respondent No.3 which exists from 2006 onwards and it is on some structure. There are several houses and structures in Sy.No.88, therefore, the BBMP is regularizing the same.
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13. It is submitted that khata number mentioned in the noting sheet produced by the petitioner is also at variance with the actual khata number evidencing that adequate care has not been exercised by the BBMP to actually verify details. This is also a procedural lapse for which also the order becomes infructuous. Thus she prays for dismissal of the writ petition.
14. I have heard the learned counsel for the petitioner, learned counsel for respondents No.1 & 2 and third respondent party in person and perused the entire writ papers.
15. The learned counsel for the petitioner submits that the BBMP having passed the confirmation order, is not justified in not proceeding further to see that the proceedings is reached to its logical end. There is no impediment for the BBMP to demolish the illegal construction made by the third respondent. The stay granted in the first appeal by this court is only in respect of handing over possession. The B B M P has failed to discharge the statutory obligation in not demolishing the construction. On the other hand, the learned counsel for respondents 1 & 2 submits that the report submitted in the case discloses that on 3.9.2015 12 administrative approval was taken for issuance of notice to the third respondent to remove the unauthorized construction failing which to deposit a sum of RS.2.4 lakhs to the Corporation towards charges for removal of unauthorized construction or else the corporation would demolish and recover the said charges as arrears of land revenue. Thereafter notice was issued on 21.1.2016 to the respondent No.3 as well as BESCOM, BWSSB to stop supply of power and water to the said building. The police authorities are also intimated to extend police help. Therefore, it is submitted, it is not that the respondents have kept quiet, but are taking steps in accordance with law. In the circumstances, the relief prayed for by the petitioner cannot be granted.
16. The third respondent, party in person made submission that there are suppression of facts by the petitioner, there are procedural lapses on the part of the respondent authorities in conduct of the alleged proceedings for demolition of the unauthorized construction. The impugned orders are in violation of the principles of natural justice. The notice u/s 321(1) & (2) of the Act has not been served on her. There is overwriting 13 showing the attempt made by the respondents to change the date of the order from 28.11.2013 to 18.11.2013. The order u/s 321(3) of the Act is alleged to have been served on 29.11.2013 but BBMP file shows that the same was signed by the respondent No.3 on 30.11.2013. The confirmatory order has not been served on the third respondent. The address mentioned in both the cases is vague which indicates the respondents had no intention of the said documents should reach its destination. Section 308 notice is stated to have been served on watchman of some site owner in LRDE layout which is totally a different layout. The body of the notice u/s 321 gives time of seven days but respondent No.3 confirmed the notice within 24 hours in clear violation of the principles of natural justice. The plan sanctioned to the petitioner says that the land is a vacant land after inspection in July, 2014. This indicates that the respondents till date do not know the exact address or location of this respondent's house and have acted purely on the direction of the petitioner.
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17. The admitted facts are that the petitioner has filed the suit for declaration, possession and permanent injunction which is decreed against the third respondent. Against the said decree, the third respondent has preferred regular first appeal. In the said appeal at the intervention of the petitioner, only handing over possession is stayed. The B B M P authorities have passed provisional order under Section 321(1) & (2) of the Act and the third respondent failing to satisfy about the regular construction, an order of confirmation came to be passed u/s 321(3) of the Act.
18. The respondent No.3 party in person relied upon decision reported in 1995 Supp (4) SCC 426 (Syed Muzaffar Ali & Ors vs., Municipal Corporation of Delhi, and contended that mere departure from the authorized plan or putting up a construction without sanction plan does not ipso facto and without more necessarily and inevitably justify demolition of the structure. There may be cases of grave and serious breaches of the licensing provisions or building regulations that may call for the extreme step of demolition. These are matters for the 15 authorities to consider at the appropriate time having regard to the nature of the transgressions.
19. The third respondent further placed reliance on the decision in U P State Road transport Corporation & Another vs., Mohd. Ismail & others (1991) 3 SCC 239 to advance the contention that the court cannot direct the statutory authority to exercise the discretion in a particular manner not expressly required by law. The court could only command the statutory authority by a writ of mandamus to perform its duty by exercising the discretion according to law.
20. In the circumstances and for the reasons referred to above and the law enunciated in the aforesaid decisions, I am of the view that no doubt discretion rests with the competent authority under the Act, but having initiated the proceedings, passed order of confirmation, the proceedings shall reach to its logical end. Whatever direction is issued by this Court, it would be in accordance with the statutory provisions and even compliance thereof shall be in accordance with law. In the instant case, though it cannot be said that the respondent 16 authorities have kept quiet in the matter, having regard to the clarification sought for in the regular first appeal and thereafter approval obtained for issuance of notice, it is a fact that the proceedings has not concluded. In that view of the matter, this writ petition (W P No.18596/2015 (LB-BMP) is disposed of directing the respondent authorities to conclude the proceedings initiated under Section 462 of the Act as expeditiously as possible, in accordance with law.
21. So far as the second writ petition is concerned, where the impugned orders passed under Section 321(1) & (2) and Section 321(3) are challenged, the petitioner has an alternative remedy of appeal before the Karnataka Appellate Tribunal. Reserving such a liberty to the petitioner to avail of alternative remedy of appeal, W P No.3147/2016 (LB-BMP) is disposed of. All contentions are left open.
Sd/-
JUDGE akd