Karnataka High Court
Shree Realtors P Limited vs Commissioner Bruhath Bangalore ... on 2 February, 2021
Equivalent citations: AIRONLINE 2021 KAR 89
Author: S.G.Pandit
Bench: S.G. Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2021
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.14725 OF 2020 (LB-BMP)
BETWEEN:
SHREE REALTORS P LIMITED
BEING A COMPANY INCORPORATED
UNDER THE COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
"VASWANI VICTORIA" NO.30, VICTORIA ROAD
BANGALORE-560 047.
REPRESENTED BY ITS DIRECTOR
MR. ARUN A ADVANI ...PETITIONER
(BY MISS. NAYANA TARA B.G., ADVOCATE)
AND:
1. COMMISSIONER
BRUHATH BANGALORE MAHANAGARA PALIKE
N R SQUARE
BENGALURU - 560 002.
2. ASSISTANT EXECUTIVE ENGINEER
BBMP WARD NO.85
DODDANEKUNDI
HOODI, SUB DIVISION
BENGALURU - 560 002.
3. COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
KUMARA PARK WEST
BENGALURU - 560 027.
...RESPONDENTS
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(BY SRI. K.N. PUTTEGOWDA, ADVOCATE FOR R-1 & R-2
SRI. K KRISHNA, ADVOCATE FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
NOTICE DATED 04.12.2020 PRODUCED AT ANNEXURE-V
ISSUED BY R-2.
THIS PETITION COMING ON FOR ORDERS THROUGH
VIDEO CONFERENCE THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Even though the matter is listed for orders, with the consent of learned counsel for both the parties, the matter is taken up for final disposal.
2. The petitioner is before this Court under Article 226 of the Constitution of India praying for a writ of certiorari to quash the notice dated 04.12.2020 bearing No.BBMP/Sakala/HOUV/PO/71/2020-21 issued by the 1st respondent-Bruhath Bangalore Mahanagara Palike (for short 'the BBMP') under Section 321 (1) and (2) of the Karnataka Municipal Corporations Act, 1976 (for short 'the Act').
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3. This Court passed interim order dated 14.12.2020 staying the impugned notice dated 04.12.2020 and all further proceedings thereto and restrained the respondents from precipitating the matter, till the next date of hearing.
4. Heard Miss Nayana Tara, learned counsel for Sri G.L. Vishwanath, learned counsel for the petitioner, Sri K.N. Puttegowda, learned counsel for respondents 1 and 2 through video conference and Sri K. Krishna, learned counsel for respondent No.3-Bangalore Development Authority (for short 'the BDA').
5. Learned counsel for the petitioner would submit that petitioner is before this Court assailing the notice issued by the 1st respondent-BBMP under Section 321(1) and (2) of the Act, solely on the ground that there was no proper opportunity to the petitioner to file its objection and even before notice was served on the petitioner, the period mentioned therein was over. No opportunity of being heard was given to the petitioner 4 and there was no reason to come to a conclusion that petitioner had put up construction upon park and road area. Learned counsel would further submit that Public Interest Litigation (for short 'PIL') in W.P.No.45820- 823/2011 was filed by one Sri Dhanraj and others making the Aircraft Employees Co-op. Society Limited as party to the proceedings. Public Interest Litigation was with regard to layout formed by respondent No.3- Society in the land acquired in Sy.Nos.115/1, 116 to 121, 122/1 and 2, 124/1 3, 125 and 131/1, 3 of Kundalahalli, Survey Nos.39 to 43 of Chinnappanahalli, Krishnarajapura Hobli and Survey Nos.8 and 73 of Tubarahalli, Varthur Hobli, Bangaloru South Taluk, Bangalore District whereas the petitioner's property falls in Sy.Nos.111 and 123/2 of Kundalahalli Village. The petitioner filed I.A.Nos.12 and 13/2020 in the said WP No.45820/2011 for impleading and for modification of the order dated 04.11.2020 passed in the said writ petition. The said applications were disposed of by order dated 16.12.2020 observing that the writ petition 5 would be decided by the learned Single Judge on its own merits and without being influenced by the pendency of the writ petition and orders passed therein. Learned counsel for the petitioner refers to order dated 13.01.2021 passed in W.P.No.45820/2011, but the said order would not apply to the case of the petitioner.
6. The order dated 19.01.2021 passed under Section 321(3) of the Act would not refer to the order dated 16.12.2020, whereby the applications of the petitioner are disposed off. Moreover, it is submitted that this Court has passed an interim order staying the impugned notice dated 04.12.2020 issued under Section 321(1) and (2) of the Act and all further proceedings thereto. In that circumstances, it is stated that respondent-BBMP could not have proceeded to pass confirmation order under Section 321(3) of the Act.
7. Per contra, learned counsel Sri.K.N.Puttegowda appearing on behalf of the respondent-BBMP would 6 submit that the property involved in the present Writ Petition and the property involved in PIL i.e., W.P.No.45820/2011 is one and the same. Further, the learned counsel submits that the Division Bench of this Court while passing orders on I.A.Nos.12 and 13 of 2020 filed by the petitioner herein in the said PIL permitted the BBMP to proceed further and not to take actual action of demolition for a period of three weeks. Thereafter, in view of the observation of the Division Bench of this Court, the respondent-BBMP proceeded further to pass order under Section 321(3) of the Act. Further, learned counsel Sri.K.N.Puttegowda submits that if the petitioner is aggrieved by the confirmation order passed under Section 321(3) of the Act, it would be open for the petitioner to file an appeal as provided under Section 443-A of the Act. Thus, he prays for dismissal of the Writ petition.
8. The petitioner is before this Court assailing the notice issued under Section 321(1) and (2) of the Act, wherein it is alleged that the petitioner in ward No.85, 7 Sy.No.123, ITPL Main Road, AECS Layout, Kundalahalli, constructed building over the land which was meant for Park and Road. As the building was unauthorized, the petitioner was given seven days time to reply, failing which, it stated that the confirmation order would be passed.
9. The contention of the learned counsel for the petitioner is that the petitioner was not afforded sufficient time to file its objection to the notice under challenge and by the time, the notice was served on the petitioner, the period stated therein was over. Whether the petitioner had an opportunity or whether the notice was served subsequent to the expiry of period stated therein need not be gone into at this stage in view of the order passed by the Division Bench of this Court in W.P.No.45820/2011 on I.A.Nos.12 and 13 of 2020 of the petitioner herein. The order dated 16.12.2020 reads as follows:-
"Learned Counsel appearing for the Bruhat Bengaluru Mahanagara Palike (BBMP) seeks 8 time to comply with the direction contained in Clause 3 of the order dated 30th November 2020. We, accordingly, grant him time of one week to do so.
Learned Counsel appearing for the applicant in IA No.3/2020 seeks time. We accordingly grant him time of four weeks. IA Nos.6, 7, 8, 9, 10, 11 and 14 of 2020:
Heard the learned Counsel appearing for the applicants.
Learned Counsel for the applicants to supply copies of IA Nos.6, 7, 8, 9, 10, 11 and 14 of 2020 to the learned Counsel appearing for the BBMP. Reply to the applications shall be filed by all the concerned within a period of three weeks from today. We make it clear that notwithstanding the pendency of the writ petition and the interlocutory applications, it will be always open for the applicants to file appropriate proceedings in accordance with law for challenging the action initiated by the BBMP. The concerned authority before which remedy is adopted will decide the same on its own merits without being influenced by the pendency of the writ petition and the orders passed therein.9
We suggested the learned Counsel appearing for the applicants that a Government Surveyor can be appointed to carry out the survey with a view to find out whether while constructing the building, the applicants have committed encroachment of park and road as alleged by the BBMP. If the applicants are willing to accept this suggestion, they are free to file a memo before the Court, so that instead of driving the applicants to file fresh proceedings, all the issues can be sorted out in this petition. To enable the applicants to adopt appropriate remedy, though BBMP can proceed further, the actual action of demolition shall not be taken by the BBMP for a period of three weeks from today.
List these applications on 13th January 2021.
IA Nos.12 and 13 of 2020:
Learned Counsel appearing for the applicant states that the applicant has filed W.P.No.14725/2020 for challenging the notice issued by the BBMP on 4th December 2020 under Section 321 of the Karnataka Municipal Corporations Act, 1976. We make it clear that the writ petition filed by the applicants will be decided by the learned Single Judge on its own 10 merits and without being influenced by the pendency of the writ petition and the orders passed therein. To enable the applicants to move the learned Single Judge, we direct that for a period of three weeks from today, though BBMP can proceed further, actual action of demolition shall not be taken by the BBMP. Applications are disposed of by keeping all questions open.
10. The above order permitted the respondent-BBMP to proceed further and directed stay of actual action of demolition for a period of three weeks. Based on the observation of the Division Bench of this Court, which permitted the respondent-BBMP to proceed further, the respondent-BBMP proceeded to pass confirmation order under Section 321(3) of the Act. In view of the observation of the Division Bench by its order dated 16.12.2020 in W.P.No.45820/2011 on I.A.Nos.12 and 13 of the petitioner herein, permitting BBMP to proceed further, the interim order passed by this Court on 14.12.2020 in this writ petition loses its vigour and force. However, the petitioner is not remedy less. 11 Against the order passed under Section 321(3) of the Act, the Act provides for an appeal before the Karnataka Appellate Tribunal (for short 'the KAT') under Section 443A of the Act. The grounds urged herein could be urged before the KAT. The KAT as an Appellate Authority could examine as to whether the petitioner was given sufficient time to reply to the Section 32(1) and (2) notice and also to appreciate the contention of the petitioner that property in question is not constructed in area ear marked for park or for road and the property falls in Sy.No.111 and 123/2 of Kundalahalli Village.
11. The contention of the learned counsel for the petitioner is that the order dated 13.01.2021 which is referred to in the confirmation order would have no application to the petitioner's case, since the petitioner was not impleaded, cannot be appreciated and would have no consequence in view of the order dated 12 16.12.2020 wherein the respondent-BBMP was permitted to proceed further.
12. At this stage, the learned counsel for the petitioner prays for continuation of interim order passed in this writ petition for a period of 15 days so as to enable the petitioner to avail remedy of appeal. The submission of the learned counsel for the petitioner appears to be reasonable. The interim order passed by this Court on 14.12.2020 whatever worth as on this day, would enure to the benefit of the petitioner for a period of 10 days from today and it is also made clear that the petitioner shall not put up further construction. All contentions of the parties are left open.
13. For the reasons recorded above, the writ petition stands disposed of with liberty to the petitioner to prefer an appeal against the confirmation order dated 19.01.2021 as provided under the Act.
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Registry is directed to return original of Annexure- V dated 04.12.2020 and any other document requested by the petitioner retaining a Xerox copy.
Sd/-
JUDGE NG*/SMJ*5 CT: KHV