Karnataka High Court
J Ramesh Chand vs The Commissioner on 21 June, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
WRIT PETITION NO.21 OF 2012 (LB-BMP)
C/W
WRIT PETITION No.28449 OF 2018 (LB-BMP)
IN W.P.NO.21/2012:
BETWEEN:
J. RAMESH CHAND
S/O LATE H.JAWAHARLAL,
AGED ABOUT 54 YEARS,
RESIDING AT NO.1/20,
ASSAYEE ROAD,
BANGALORE - 560 042.
...PETITIONER
(BY SRI. ADARSH GANGAL, ADVOCATE)
AND:
1. THE COMMISSIONER
BRUHAT BANGALORE MAHANAGARA PALIKE
CORPORATION BUILDINGS,
HUDSON CIRCLE,
BANGALORE - 560 002.
2. ASSISTANT EXECUTIVE ENGINEER
VASANTHANAGAR DIVISION
BRUHAT BANGALORE MAHANAGARA PALIKE
BANGALORE - 560 052
3. MRS.RUKSANA WAHEED PATEL
AGED ABOUT 48 YEARS
W/O MR.WAHEED PATEL
SINCE DEAD BY HER LR AND HUSBAND:
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3(a) MR. WAHEED PATEL
S/O NOT KNOWN TO THE PETITIONER
MAJOR,
RESIDING AT:
R/AT 8/1, CHARLESTON ROAD,
COOKE TOWN, BANGALORE - 560005.
4. MRS. SHANAZ SHABBIR PATEL
AGED ABOUT 44 YEARS
W/O MR.SHABIR PATEL
5. MRS. SAJIDA KHALID PATEL
AGED ABOUT 42 YEARS,
W/O MR.KHALID PATEL
6. MRS.ABIDA JAVEED PATEL
AGED ABOUT 40 YEARS,
W/O MR.JAVEED PATEL
7. MRS.SHAMEEM ARA MUSTAQ PATEL
AGED ABOUT 37 YEARS,
W/O MR.MUSTAQ PATEL
8. MRS.SHAHEEN USMAN PATEL
AGED ABOUT 34 YEARS,
W/O MR.USMAN PATEL
NOS.3 TO 8 ARE R/AT:
8/1, CHARLESTON ROAD,
COOKE TOWN, BANGALORE - 5
9. MRS. RUKSHANA SHABBIR PATEL
AGED ABOUT 47 YEARS,
W/O MR.SHABBIR PATEL
10. MRS. SAJIDA ABID PATEL
AGED ABOUT 42 YEARS,
W/O MR.ABID PATEL
11. MRS. HURMA ASIF PATEL
AGED ABOUT 40 YEARS,
W/O MR. ASIF PATEL
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12. MRS. FIRDOSE MUNAF PATEL
AGED ABOUT 35 YEARS,
W/O MR.MUNAF PATEL
NOS.9 TO 12 ARE R/AT:
NO.231/1, NARAYANAPILLAI STREET,
SHIVAJINAGAR,
BANGALORE - 560001.
13. MR.SALEEM MAJEED
AGED ABOUT 54 YEARS,
S/O LATE ABDUL MAJEED
R/AT NO.55, 'C' LAYOUT
HANUMANTHANAGAR,
BANNIMANTAP EXTENSION,
MYSORE - 570015.
14. MR. MUNEER MAJEED
AGED ABOUT 49 YEARS,
S/O LATE ABDUL MAJEED
R/AT NO.55, 'C' LAYOUT,
HANUMANTHANAGAR,
BANNIMANTAP EXTENSION,
MYSORE - 570015.
15. MR.SHABEER MAJEED
AGED ABOUT 52 YEARS,
S/O LATE ABDUL MAJEED,
R/AT NO.14, LAKSHMI ROAD,
SHANTHINAGAR,
BANGALORE - 560027.
...RESPONDENTS
(BY SRI. PRASHANTHCHANDRA, ADVOCATE FOR RESPONDENT
NOS.1 AND 2;
SRI. R. CHANDRASHEKAR, ADVOCATE FOR RESPONDENT
NOS.7, 10 AND 11 TO 15;
NOTICE SERVED ON RESPONDENT NOS.3(a), 4 TO 6, 8 AND 9)
THIS PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO DIRECT TO INITIATE OR
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TAKE APPROPRIATE ACTION IN ACCORDANCE TO SECTION 462
OF THE KARNATAKA MUNICIPAL CORPORATION ACT, 1976 AS
PER THE CONFIRMATION ORDER BEARING
No.¸ÀPÁ¤C/ªÀ¸ÀAvÀ£ÀUÀgÀ/¹.N./32/2011-2012 DATED 20.09.2011 VIDE
ANNEXURE-F.
IN W.P.NO.28449/2018:
BETWEEN:
MR.SHABEER MAJEED
S/O LATE ABDUL MAJEED,
AGED ABOUT 59 YEARS,
OCCUPATION: BUSINESSMAN,
RESIDING AT NO.14, LAKSHMI ROAD,
SHANTHI NAGAR,
BANGALORE - 560027.
...PETITIONER
(BY SRI. CHANDRASHEKAR R., ADVOCATE)
AND:
1. THE COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE
CORPORATION BUILDINGS,
HUDSON CIRCLE,
BENGALURU- 560 001.
2. THE JOINT COMMISSIONER (EAST)
BRUHAT BENGALURU MAHANAGARA PALIKE,
MAYO HALL, BENGALURU- 560001.
3. THE ASSISTANT EXECUTIVE ENGINEER
VASANTHA NAGARA SUB-DIVISION,
WARD No.110,
SHIVAJINAGAR, NEAR WATER TANK,
BRUHAT BENGALURU MAHANAGARA PALIKE,
BENGALURU- 560 001.
4. MR. MOHAMMED WASEEM PATEL,
AGED ABOUT 61 YEARS,
OCCUPATION: BUSINESSMAN
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5. MR. MOHAMMED WASEEM PATEL
S/O MR. ABDUL WAHEED PATEL,
AGED ABOUT 34 YEARS,
OCCUPATION: BUSINESSMAN,
RESPONDENTS 4 AND 5 ARE
RESIDING AT No.8/1,
CARLSTEN ROAD, COOKS TOWN,
BENGALURU-560005.
...RESPONDENTS
(BY SRI. H. DEVENDRAPPA, ADVOCATE FOR RESPONDENT
NOS.1 TO 3;
NOTICE TO RESPONDENT NOS.4 AND 5 ARE DISPENSED WITH
VIDE COURT ORDER DATEAD 03.05.2019)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 20.09.2011 PASSED BY THE THIRD
RESPONDENT VIDE BEARING No.AEE/VASANTHNAGAR/C.O./
32/2011-12 MARKED AT ANNEXURE-H TO THE WRIT PETITION
AND ETC.,
THESE PETITIONS COMING ON FOR HEARING THIS DAY,
THE COURT PASSED THE FOLLOWING:
ORDER
W.P.No.28449/2018 is filed seeking for a writ in the nature of certiorari to quash the order dated 20.09.2011 passed by the respondent No.3 under Section 321(3) of the Karnataka Municipal Corporations Act, 1976 (henceforth referred to as "KMC Act, 1976" for short) as well as the order dated 30.09.2015 passed by the 6 Karnataka Appellate Tribunal (henceforth referred to as "Tribunal" for short) in Appeal No.839/2011 and the order dated 31.05.2018 passed by the Tribunal in Miscellaneous Petition No.55/2017.
2. The petitioner claims that he and his family members are joint owners of the property bearing New Municipal No.34 and northern portion of New Municipal Corporation No.30 situated at Central Street, Shivajinagar. The petitioner sought sanction of a building plan to develop the aforesaid property for commercial use, which was granted on 12.05.2010 permitting the petitioner to construct stilt and three upper floors. The petitioner claimed that he constructed the building in accordance with the "Building Bye-Laws". The respondent No.3 issued a notice on 18.08.2011 addressed to Mr. Abdul Wahid Patel stating that the building plan was obtained fraudulently by showing a wrong boundary on the western side. The petitioner claims that Mr. Abdul Wahid Patel was not the owner of the property. Later, the respondent No.3 7 issued a notice under Section 321(1) of the KMC Act, 1976 on 18.08.2011 to Mrs. Ruksana Waheed Patel, wherein it was stated that the construction over the schedule property was in violation of the "Building Bye-Laws". Later, on 20.09.2011, the respondent No.3 passed an order of confirmation under Section 321(3) of the KMC Act, 1976. Aggrieved by the said order, the petitioner filed an Appeal No.839/2011 before the Tribunal. The appeal was listed for arguments on 30.09.2015, on which day it was dismissed for non-prosecution. Later, the petitioner filed Miscellaneous Petition No.55/2017 before the Tribunal for restoration of the appeal. The Tribunal by its order dated 31.05.2018 dismissed the Miscellaneous Petition. Being aggrieved by the aforesaid orders, the petitioner has filed this writ petition.
3. W.P.No.21/2012 is filed by the neighbour of the petitioner in W.P.No.28449/2018 seeking for a writ in the nature of mandamus to initiate appropriate action 8 against the unauthorized construction put up, by initiating action under Section 462 of the KMC Act, 1976.
4. The learned counsel for the petitioner in W.P.No.28449/2018 submitted that the default of the counsel in appearing before the Tribunal has resulted in exposing the building constructed by the petitioner for demolition. He submits that the petitioner has constructed the building in the accordance with the sanctioned plan and therefore, an opportunity should be granted to the petitioner to defend the action initiated by the respondents.
5. The learned counsel for the respondent Nos.1 to 3 submitted that the order of the Tribunal in Miscellaneous Petition No.55/2017 would show the dilatory tactics indulged in by the petitioner. He submitted that the Tribunal had noticed that the appeal was filed on 23.09.2011 and thereafter, the respondent Nos.4 and 5 were impleaded on 25.01.2012. On 14.08.2014, the Tribunal dismissed the appeal against the respondent 9 Nos.4 and 5 as the petitioner failed to pay the process to issue notice to the respondent Nos.4 and 5. Later, the case was listed on 18.02.2015, 12.03.2015, 29.04.2015, 15.07.2015, 21.09.2015, 23.09.2015 and 29.09.2015, on which dates, there was no representation for the petitioner. Even on 30.09.2015, there was no representation for the petitioner and therefore, the appeal was dismissed for non-prosecution. He submitted that the illegal and unauthorized construction is allowed to stand on the property for more than 11 years and therefore, no lenience be shown to the petitioner.
6. The learned counsel for the petitioner in W.P.No.21/2012 submitted that the petitioner therein was exposed to continued nuisance and his best efforts to bring down the construction in line with the sanctioned plan has proved futile. He contended that there is not even a whisper in W.P.No.28449/2018 that the construction is in accordance with the sanctioned plan and therefore, no lenience be shown.
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7. I have considered the submissions made by the learned counsel for the parties. I have also perused the documents annexed to the writ petitions.
8. As rightly contended by the learned counsel for the petitioner in W.P.No.21/2012, the petitioner in W.P.No.28449/2018 did not plead in his writ petition that the construction put up over the property in question was in accordance with the sanctioned plan but it was pleaded intelligently that it was in accordance with the "Building Bye-Laws". The petitioner had kept the proceedings before the Tribunal alive from the year 2011 till it was dismissed on 30.09.2015 for non-prosecution. The petitioner was not represented in the case before the Tribunal on eight dates of hearing. The Miscellaneous Petition itself was filed in the year 2017 after the delay of nearly two years. There was no apparent justifiable reason for the default in appearing before the Tribunal on eight hearing dates. It is, thus, apparent that the petitioner has kept alive the litigation so as to save the 11 unauthorized building from being brought down. The attempt of the petitioner in W.P.No.21/2012 to prompt the official respondents to take action under Section 462 of the KMC Act, 1976 were spurned by the petitioner in W.P.No.28449/2018 by filing the present petition. The conduct of the petitioner in misusing the judicial process to save what was found to be an illegal construction is unpardonable. A perusal of the photographs of the construction placed on record would indicate that the nuisance caused to the petitioner in W.P.No.21/2012 was probable. In that view of the matter, the petitioner in W.P.No.21/2012 deserves to be adequately compensated for the nuisance suffered over the years.
9. Since the dismissal of the appeal before the Tribunal has resulted in the petitioner in W.P.No.28449/2018 being condemned unheard, it is appropriate that an opportunity is granted to the petitioner to pursue his appeal before the Tribunal. Hence, the following 12 ORDER W.P.No.28449/2018 is allowed-in-part and the impugned order dated 30.09.2015 passed by the Tribunal in Appeal No.839/2011 as well as the order dated 31.05.2018 in Miscellaneous Petition No.55/2017 are set aside subject to payment of cost of Rs.3,00,000/- (Rupees Three Lakhs only) payable by the petitioner to Mr. J. Ramesh Chand (petitioner in W.P.No.21/2012) within a period of two weeks from today. The Karnataka Appellate Tribunal is directed to consider the Appeal No.839/2011 and dispose it off in accordance with law within a period of six months from the date of receipt of a certified copy of this order.
The petitioner in W.P.No.28449/2018 shall appear before the Karnataka Appellate Tribunal on 11.07.2022 along with a certified copy of this order. It is made clear that if the petitioner fails to pay the cost as mentioned above to the Mr. J. Ramesh Chand (petitioner in W.P.No.21/2012) within two weeks from today, the 13 respondents are directed to issue a demolition order under Section 356 of Bruhat Bengaluru Mahanagara Palike Act, 2020.
In view of the disposal of W.P.No.28449/2018, W.P.No.21/2012 is disposed off, reserving liberty to the petitioner to seek impleadment before the Karnataka Appellate Tribunal in Appeal No.839/2011.
Sd/-
JUDGE PMR