Karnataka High Court
Sri.S.R.R.K.Sharma vs Bruhat Bengaluru Mahanagara on 13 July, 2016
Author: Vineet Kothari
Bench: Vineet Kothari
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 13th DAY OF JULY 2016
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION No.31588/2016 (LB-BMP)
BETWEEN:
1. SRI. S.R.R.K. SHARMA
AGED ABOUT 73 YEARS
CHARTERED ACCOUNTANT.
2. MRS. PRABHU SHARMA
AGED ABOUT 64 YEARS.
3. Dr. DHEEMANTHINI
AGED ABOUT 34 YEARS.
4. MISS. YASHASWINI
AGED ABOUT 33 YEARS
ARCHITECT.
ALL ARE RESIDING AT
No.27, 3RD CROSS, 4TH BLOCK
K.P. WEST, BENGALURU - 560 020.
...PETITIONERS
(BY SRI. H.R. ANANTHA KRISHNA MURTHY, ADV.)
AND:
1. BRUHAT BENGALURU MAHANAGARA
PALIKE REP. BY COMMISSIONER, N.R. SQUARE
BENGALURU - 560 002.
2. THE ASSISTANT EXECUTIVE ENGINEER
BRUHAT BENGALURU MAHANAGARA
PALIKE, MALLESHWARAM, BENGALURU-03.
3. KARNATAKA APPELLATE TRIBUNAL
MULTI STORIED BUILDING
AMBEDKAR VEEDHI, BENGALURU - 01
BY ITS SECRETARY.
Date of Order 13.7.2016 W.P.No.31588/2016
Sri. S.R.R.K. Sharma & Ors. Vs
Bruhat Bengaluru Mahanagara Palike & Ors.
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4. SMT. YASHODHA RAO
W/O NAGARAJ RAO
AGED ABOUT 60 YEARS
ADVOCATE, R/AT. No.1662/2
RAMAMOHANAPURAM
BENGALURU - 21.
...RESPONDENTS
(BY SRI. V. SREENIDHI, AGA FOR R3)
THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
PASSED BY THE R-3 UNDER THE ORDER OF ANNX-F
DTD:23.1.2016 IN APPEAL No.1031/2011 AND THE ORDER
PASSED BY THE R-2 UNDER THE DOUCMENT OF ANNX-E DTD:
3.12.2011 & ETC.
THIS W.P. COMING ON FOR PRELIMINARY HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Mr. H.R. Anantha Krishna Murthy, Adv. for Petitioners Mr. V. Sreenidhi, AGA for R-3
1. This writ petition is directed against the order dated 23.01.2016 passed by the Karnataka Appellate Tribunal, Bangalore, in Appeal No.1031/2016 (Sri.S.R.R.K.Sharma & others Vs. BBMP & others).
2. The issue regarding deviations in the construction raised by the petitioners against the sanctioned plan was decided against the petitioners in the impugned order upholding the order passed by the Date of Order 13.7.2016 W.P.No.31588/2016 Sri. S.R.R.K. Sharma & Ors. Vs Bruhat Bengaluru Mahanagara Palike & Ors. 3/5 competent Authority under Section 321(3) of the Karnataka Municipal Corporations Act,1976.
3. Counsel for the petitioners submitted that the deviations were not to the extent of 30.67% in front and 20% on the right side of the constructed building in question, but were only 3.71% and 8.98% in the set back area as observed in the later part of the Tribunal. He submitted that these minor deviations was on account of the projections of the building, which do not fall within the mischief of the deviation and such deviation can be compounded by the competent Authority under the relevant Rules. He also submitted that the Memo of Appeal filed before the Karnataka Appellate Tribunal, this contention about the minor deviation on account of the projections was raised, but the same was not considered by the Tribunal.
4. Having heard the learned counsel for the petitioners, this Court does not find any such contention as having been argued and raised before the Tribunal, even though the averment in this regard or a Date of Order 13.7.2016 W.P.No.31588/2016 Sri. S.R.R.K. Sharma & Ors. Vs Bruhat Bengaluru Mahanagara Palike & Ors. 4/5 ground in the memo of Appeal might have been made by the petitioners. The petitioners has also not approached any competent Authority for seeking compounding of the minor deviations, which according to the learned counsel, were compoundable.
5. The fact of the deviation being either 3.71% or 8.98% in the set back area on account of projections in the construction of the building in question, does not appear to have been raised before the Tribunal from the tenor and body of the said order itself. Since the contention as sought to be raised before this Court that such an argument was raised before the Tribunal and memo of Appeal also contains and stipulation in that regard, the petitioners are at liberty to file a Review Petition before the KAT raising that the contention though raised, was not considered by the Tribunal itself. The said contention cannot be permitted to be raised before this Court in the present writ petition in the absence of the same first having been raised before the Tribunal itself.
Date of Order 13.7.2016 W.P.No.31588/2016 Sri. S.R.R.K. Sharma & Ors. Vs Bruhat Bengaluru Mahanagara Palike & Ors. 5/5
6. Accordingly, this writ petition is disposed of with a liberty and direction to the petitioners to approach the KAT by way of appropriate Review Petition and the said Tribunal is expected to decide the same in accordance with law. The petitioners are also at liberty to approach the competent Authority of BBMP for compounding, which upon such application, if filed in accordance with the Rules is also liable to be considered by the concerned Authorities in accordance with law.
Sd/-
JUDGE Srl.