Karnataka High Court
The Commissioner vs Sri M Shivaram on 24 July, 2013
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 24TH DAY OF JULY, 2013
BEFORE
THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO.10187/2010 (LB-BMP)
BETWEEN
1. The Commissioner
Bruhath Bangalore Mahanagara Palike
Bangalore
2. Assistant Executive Engineer
Koramangala Range
Bruhath Bangalore Mahanagara Palike
Bangalore - 560 010
... Petitioners
(By.Sri.Gururaj Joshi, Adv.)
AND
Sri.M.Shivaram
S/o Late Krishnappa
Major, R/at No.1, 4th Block
Koramangala, Black 68
Bangalore - 560 034 ... Respondent
(By Sri.T.Mohandas Shetty, Adv. for R1)
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India, praying to quash the
impugned order dated 20.11.2009 under Annexure-C
passed in appeal No.31/04, on the file of the Karnataka
Appellate Tribunal, Bangalore and to dismiss the said
2
appeal in 31/04, filed by the respondent, in permitting
the respondent to pay the compoundable fee within one
month.
This writ petition coming on for Preliminary
Hearing this day, the court made the following:-
ORDER
The petitioners in this case pray for quashing of the order dated 20.11.2009 under Annexure-C passed in appeal No.31/04, on the file of the Karnataka Appellate Tribunal, Bangalore.
2. It is the case of the petitioners that the second petitioner issued a notice dated 22.11.2000 under Section 321(1) of the KMC Act, in which the respondent was directed to set right the deviated area which is contrary to its building bye laws. The second petitioner has alleged that the respondent has deviated beyond the condonable/ compoundable limit of 5% and deviation to the extent of 135%. The said order was confirmed in an appeal filed under Section 321(3) of the KMC Act. The KAT set aside the said order by referring judgment 3 of this court reported in 1989 (1) KLJ 537 in appeal No. 31/2004 by its order dated 20.11.2009.
3. Learned counsel for the petitioner submits that the tribunal has committed an error in passing the order holding that the deviation committed by the respondent is less than 50% and the same could be compoundable. The order of the Tribunal is contrary to building bye laws in which the permissible limit for condonation or compounding the deviation is only up to 50%.
4. Learned counsel for the respondent submitted that the Corporation has not measured the deviation. Hence it is wrong on the part of Corporation to hold that the respondent has committed deviation beyond 50%. If there is deviation, the same has to be condoned if it has not affected any public or tax payers for which he relied on a judgment of this court reported in 1989(1) KLJ 357 in the case of Dr. M. Srinivas Vs. Corporation of the City of Bangalore. 4
5. I have heard the learned counsel for the parties.
6. The reasons assigned by the Tribunal is contrary to item No. 6.0 of Building Bye laws, 2003 of the Corporation which reads as under:
(i) "Wherever any construction is in violation/deviation of the sanctioned plan, the Commissioner may, if he considers that the violations/deviations are within 5% of the (1) the setback to be provided around the building, (2) plot coverage, (3) floor area ratio, and (4) height of the building and that the demolition under Chapter XV of the Act is not feasible without affecting structural stability, he may regularise such violations/deviations after recording detailed reasons for the same.
(ii) Violation/deviation as at 6.0 (i) above may be regularized only after sanctioning the modified plan recording thereon the violations/deviations and after the levy of fee prescribed by the Corporation from time to time.5
(iii) Regularisation of violations/deviations under this provision are not applicable to the buildings which are constructed without obtaining any sanctioned plan whatsoever and also the violations/deviations which are made in spite of the same being specifically deleted or rejected in the sanctioned plan."
Any constructions put up by obtaining sanctioned plan and contrary to the sanctioned plan, a construction is put up, and if it exceeds 50% of the compoundable limit, the Corporation has no power to condone or compound the deviation. In order to find out whether the respondent has committed deviation beyond the compoundable limit of 50% the order of the competent authority is empowered under Section 321(1) and Section 321(3) of the KMC Act which is extracted herein: 6
Sl. Description As per As per Total area % age of Remarks No. Sanction Actual deviated deviatio ed Plan n
01. Set back of 5,0" 2.0" 67.5aft 60.00% In all front the (Northerin three inside) floors
02. Front Side 7.0" & 5.6" & 91.00 aft 69.33% Includin (Western 11.9" 0.3" g Side) staircase in three floors
03. Rear Side 5.0" Abutti 70.00aft 100.00% In all ng the three floors
04. Coverage 40.29 77.48 37.19 92.30%
05. F.A.R. 0.84 1.98 1.14 135%
7. From the table referred above, it is found that in respect of five items there is a deviation of 60% to 135%, which cannot be condoned or compounded under the provisions of Building Bye law referred above. If the same is considered in the light of the judgment referred by the petitioners, it gives green signal to all the deviators of buildings and there will be no sanctity for item No. 6.0 of building Bye Law. When law requires a 7 person to put up construction according to the Building Bye laws on the basis of sanctioned plan, the directions to be given only in accordance with law or the Building Bye laws. Deviations beyond 50% of compoundable limit if it is approved, it gives wrong impression on the public to make an application for condoning the deviation after deviating beyond 50%. In that view of the matter, whether the publics are affected or not is immaterial in this case. The question whether the petitioner has committed deviation for the purpose of item No.6.0 of the Building Bye laws 2003 the tribunal has referred and extracted the order passed by the Assistant Commissioner under Section 321(1) and 321(3) and also the extent of deviations. But no reasons have been assigned as to why the same has not been confirmed holding that the petitioner has committed an offence. Under these circumstances, the order passed by the tribunal is an error and bad in law. 8
Accordingly the order dated 20.11.2009 under Annexure-C passed in appeal No.31/04, on the file of the Karnataka Appellate Tribunal, Bangalore is hereby quashed.
The writ petition is allowed accordingly.
Sd/-
JUDGE Bsv