Karnataka High Court
Sri C M Poonacha vs Sri Pyarejan on 23 July, 2018
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23rd DAY OF JULY 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NOs.9229 & 10683/2018 (LB-BMP)
BETWEEN:
SRI C.M. POONACHA
AGED ABOUT 43 YEARS,
S/O. LATE C.M.MONAPPA,
RESIDING AT NO.22/2
ALFRED STREET,
RICHMOND ROAD,
BANGALORE-560025.
...PETITIONER
(BY SRI.KIRAN V. RON, ADVOCATE)
AND:
1. SRI PYAREJAN
S/O. LATE ABDUL KHADER
AGED ABOUT 79 YEARS,
RESIDING AT PADMAGATTA
MULBAGAL TALUK,
KOLAR DISTRICT.
2. SRI SAMIULLA
S/O. LATE M. ABDUL KHADER
AGED ABOUT 64 YEARS,
RESIDING AT NO.22/3
ALFRED STREET,
RICHMOND TOWN,
BANGALORE-560047.
3. M/S. ELEGANT CONSTRUCTIONS
A PROPRIETARY CONCERN
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REPRESENTED BY ITS PROPRIETOR
MR. M.K. HUSSAIN
S/O. SRI ZAFDAR HUSSAIN,
AGED ABOUT 48 YEARS,
NO.145, KHB COLONY,
5TH BLOCK,
KORAMANGALA
BANGALORE-560095.
4. THE COMMISSIONER
BRUHAT BANGALORE MAHANAGARA PALIKE
N.R. SQUARE
BANGALORE-560002.
5. THE ASSISTANT EXECUTIVE ENGINEER
SHANTHI NAGAR SUB-DIVISION,
7TH FLOOR, PUBLIC UTILITY BUILDING,
BRUHAT BANGALORE MAHANAGARA PALIKE,
MAYO HALL,
BANGALORE-560001.
...RESPONDENTS
(BY SRI.K.N. PUTTEGOWDA, ADV., FOR R4 AND R5)
THESE PETITIONS ARE FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 17.11.2017 PASSED IN APPEAL NO.1182/2014 BY
THE KARNATAKA APPELLATE TRIBUNAL, BANGALORE
(ANNEXURE-A) AND ETC.,
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has filed the present writ petitions seeking for a writ of certiorari to quash the impugned order dated 17.11.2017 passed in Appeal No.1182/2014 by the Karnataka Appellate Tribunal, Bengaluru (for 3 short 'the KAT') as per Annexure-A and a writ of mandamus or any appropriate order or direction against respondent Nos.4 and 5 to take necessary action to demolish the unauthorized and illegally constructed 3rd floor and the deviations as per the provisional order dated 17.12.2014 and the confirmation order dated 27.12.2014 in the schedule property as per Annexures-F and J.
2. It is the case of the petitioner that respondent Nos.1 to 3 who are the neighbouring owners have filed O.S. No.25277/2014 before the Prl. City Civil and Sessions Judge, Bengaluru seeking for a relief of perpetual injunction against respondent Nos.4 and 5 restraining them from demolishing any portion of the building or interfering with the lawful possession of the suit schedule property. The trial Court by an order dated 15.02.2014, granted temporary injunction against respondent No.4 from demolishing the building 4 constructed in the schedule property except in accordance with the procedure under the provisions of Section 321 of the Karnataka Municipal Corporations Act, 1976 (for short the 'KMC Act'). Thereafter, Shamun Arambha Apartments Owners Association, the members of which were the owners/occupants of the building situated adjacent to the building being constructed by respondent No.3, aggrieved by the inaction of the BBMP authorities in not initiating any action despite numerous complaint, preferred W.P.No.57240/2014 before this Court praying to direct the BBMP authorities to initiate proceedings under Section 321 of KMC Act restraining M/s.Elegant Constructions-respondent No.3 herein in respect of property Nos.22/1 and 22/3 situated at Alfred Street, Richmond road, Bengaluru.
3. This Court by an order dated 16.12.2014, in view of the submission made by respondent Nos.1 to 4 - Corporation (in W.P. No.57240/204) held that action in 5 accordance with law will be initiated under Section 321 of the KMC Act, over the complaint lodged by the petitioner in the matter of construction of a building by respondent No.5 (respondent No.3 herein) and disposed off the writ petition. Thereafter, on 17.12.2014, respondent Nos.4 and 5 passed a provisional order as per Section 321(1) of the KMC Act. According to the petitioner, the spot inspection was conducted by respondent Nos.4 and 5 on 17.12.2014 and consequently notice under Section 321(2) of the KMC Act was also issued. Respondent Nos.1 to 3 have filed their objections to the said notice on 20.12.2014. Subsequently, the provisional order was followed by a confirmation order dated 27.12.2014 under Section 321(3) of the KMC Act.
4. Being aggrieved by the notice dated 27.12.2014 issued under Section 321(3), respondent Nos.1 to 3 herein filed an appeal before the KAT in Appeal No.1182/2014. The KAT, at the inception, though 6 granted status-quo, subsequently by the impugned order dated 17.11.2017, allowed the Appeal and remitted the matter back to the 2nd respondent for fresh disposal of the same in accordance with law and also directed to follow the procedure laid down under Section 321(1) of the KMC Act. Hence, the present writ petitions have been filed by the petitioner who was 3rd respondent before the KAT.
5. I have heard the learned counsel for the parties to the lis.
6. Sri Kiran V. Ron, learned counsel for the petitioner has vehemently contended that the impugned order passed by the KAT remanding the matter to the respondent Nos.4 and 5 for fresh consideration is erroneous and contrary to the material on record. He has contended that though he came before the KAT as a party on the application filed by him for impleading that was the subject matter before this Court filed by 7 respondent No.3 in W.P. No.14644/2017. This Court by order dated 20.9.2017 has dismissed the said petition. He has further contended that the provisional order and the final order passed by the authorities-respondent Nos.4 and 5 are speaking orders and also complied with all statutory requirements. Therefore, the Tribunal ought not to have remanded the matter. He would further contend that though respondent Nos.1 to 3 are putting up construction of 3rd floor without there being any sanctioned plan, the same was not disputed by respondent Nos.1 to 3. The Tribunal ought not to have remanded the matter unnecessarily, when all the records clearly indicate that respondent Nos.1 to 3 have violated the sanctioned plan and there being illegally started construction of 3rd floor, hence, he submits that the impugned order is erroneous and contrary to the material on record. Therefore, he sought to quash the order passed by the Tribunal.
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7. Learned counsel for respondent Nos.4 and 5 - the Corporation has fairly submits that since the matter was remanded by the KAT for fresh consideration, the authorities will have issue notice to the appellant as well as the present petitioner and has to pass fresh orders after conducting spot inspection in the presence of present petitioner and respondent Nos.1 to 3.
8. The said submission is placed on record.
9. Having heard the learned counsel for the parties, it is not in dispute that on the basis of the complaint lodged by the residents of Shamun Arambha Apartment Owners Association, the respondent Nos.4 and 5-Corporation did not initiated proceedings. Therefore, he has filed the writ petition before this Court in W.P. No.57240/2014 and this Court by an order dated 16.12.2014 disposed off the writ petition as not survive for consideration in view of the submission made by the learned counsel for the Corporation that respondent will 9 initiate proceedings under Section 321 of the KMC Act. It is also not in dispute that the Corporation-authorities passed the provisional order on 17.12.2014 and confirmed the order on 27.12.2014. Against the said orders, respondent Nos.1 to 3 filed an appeal before the KAT in appeal No.1182/2014. The KAT considering the rival contentions of all the parties including the respondent Nos.4 and 5 - Corporation authorities and the present petitioner by the impugned order dated 17.11.2017 has recorded a categorical finding as under:
9. The Lower Court Records disclose that no proper proceedings are initiated against the Appellant and no order sheet is maintained with regard to the passing of orders by the 2nd Respondent for conducting spot inspection, issuing notices to the Appellants intimating about their presence at the time of Spot Mahazar and with regard to the personal satisfaction of the 2nd Respondent about the unauthorized constructions made by the Appellants etc. So it is very much clear that the 2nd respondent did 10 not pass any speaking orders by applying his mind.
10. Therefore, remanded the matter relying upon the dictum of the order of the Division Bench of this Court in the case of Kavitha Podwal v/s The BBMP and others in Writ Appeal Nos.967-968/2016 dated 28.04.2016 for fresh consideration. The KAT further recorded a finding that Section 321 makes it mandatory that the Commissioner shall satisfy himself about the nature of violation committed in the construction of building within the limits of BBMP. Moreover no Spot Mahazar Report or the Sketch prepared in the presence of the Appellant are available in the lower court records to show that the Respondents have actually visited the spot and have verified the percentage of violation committed in the construction of the building. Then what is the basis for issuing prior notice and for passing provisional order is not explained. So, the impugned order is found illegal. So, the 11 interference of this Tribunal is found very much necessary into the confirmation order passed by the Respondent.
11. Though learned counsel for the petitioner vehemently contended that the provisions of Section 321 of the Act does not prescribe spot Mahazar or preparation of sketch in the presence of the appellant, the impugned order passed by the KAT remanding the matter would not arise, cannot be accepted in view of the dictum of this Court in the case of S.H.Malagi V. Bruhat Bengaluru Mahanagara Palike, Bengaluru and others reported in 2015(3) KLA 114 held that, the Tribunal holding that the order passed by the authorities without conducting the spot inspection and prepared a spot mahazar was in violation of principles of natural justice and directing to conduct spot inspection in the presence of both complainant and owner of property after notifying them about deviation and para No.5 of the order reads as under:12
5. The Tribunal, on going through the record, concluded that there was no spot mahazar prepared in the presence of the 3rd respondent herein and that the alleged deviation was not ascertained in accordance with law and in the presence of the 3rd respondent herein. Therefore, holding that the order passed by authorities under sub-section (3) of Section 321 was without conducting spot inspection and preparing a spot mahazar in the presence of respondent 3 herein, the Tribunal held that such an order was in violation of the principles of natural justice and therefore, on quashing the order dated 14-3-2007, directed the respondent-authorities to conduct a spot inspection in the presence of the petitioner as well as the 3rd respondent hereinafter notifying them about the deviation, if any, and to complete the exercise within a period of six months from the date of the order i.e.,14-1-015.
Therefore, the Tribunal on perusal of the original records, has come to a conclusion that the determination of deviation by the respondent-authorities was not after conducting a spot inspection in the presence of 13 the 3rd respondent and the procedure adopted by the respondent-authorities was in violation of the principles of natural justice. It is in that context that the Tribunal set aside the order dated 14-3-2007, but has not left the matter at that stage. The matter has been remitted back to the respondent-authorities for conducting spot inspection in the presence of the petitioner and respondent 3 herein so as to determine the extent of deviation. Such an exercise would be in compliance with the principles of natural justice. Therefore, I find no infirmity in the impugned judgment dated 14-1-2015. There is no merit in the writ petition.
Writ petition is dismissed.
12. In view of the same, the contention of the learned counsel for the petitioner that there is no need to hold spot inspection or preparation of Mahazar is devoid of merits. The order passed by the Tribunal recording that the lower court records disclose that no proper proceedings are initiated against appellant and no order sheet is maintained with regard to the passing of orders 14 by the 2nd respondent for conducting spot inspection, issuing notices to the appellants intimating about their presence at the time of spot mahazar and with regard to the personal satisfaction of 2nd respondent about the unauthorized constructions is a finding of fact based on the records placed. The finding of fact of the Tribunal cannot be interfered with under Articles 226 and 227 of Constitution of India. The KAT considering the irregularity committed by the authorities, remanded the matter for fresh enquiry. Hence, the said order is no way prejudice to the present petitioner who is an adjacent owner of respondent Nos.1 to 3. The petitioner has not made out any ground to interfere with the impugned order passed by the KAT which is a fact finding authority exercising the writ jurisdiction of this Court.
13. In view of the above, writ petitions are dismissed. However, respondent-authorities are directed to hold fresh enquiry in the presence of petitioner herein 15 and respondent Nos. 1 to 3 in terms of the remand order passed by the KAT and pass fresh orders strictly in accordance with law.
Ordered accordingly.
Sd/-
JUDGE BS