Karnataka High Court
Mr. Rajendran @ Rajendran P vs The Commissioner Bruhath Bengaluru ... on 19 October, 2022
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE Mr. JUSTICE M.G.S. KAMAL
WRIT PETITION No.9562 OF 2022 (LB-BMP)
BETWEEN:
MR. RAJENDRAN @ RAJENDRAN P.
S/O LATE PARASHURAMAN
AGED ABOUT 72 YEARS
R/AT NO.06, JAMUNA NIVAS
GROUND FLOOR
VELLERAMAN TEMPLE STREET
VANNARPET, VEVEKNAGAR POST
BENGALURU - 560 047.
...PETITIONER
(BY SRI.R.K. THONTADHARYA, ADVOCATE)
AND:
1. THE COMMISSIONER
BRUHATH BENGALURU
MAHANAGRA PALIKE
CORPORATION BUILDING
HUDSON CIRCLE
BENGALURU - 560 001.
2. THE ASSISTANT EXECUTIVE ENGINEER
BRUHATH BENGALURU
MAHANAGARA PALIKE
DOMLUR SUB DIVISION
1ST MAIN ROAD, 1ST B CROSS
DOMLUR LAYOUT
2
BENGALURU - 560 071.
... RESPONDENTS
(BY SRI. PAVAN, ADVOCATE FOR
SRI. H.DEVENDRAPPA, ADVOCATE FOR R1 & R2)
THIS PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASHING THE ORDER DATED:29.03.2022 IN APPEAL
NO.16/2022 PASSED BY THE 1ST RESPONDENT WHEREBY
THE 1ST RESPONDENT HAS DISMISSED THE APPEAL
PREFERRED BY THE PETITIONER (ANNEXURE-K) AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Present petition is filed by the petitioner seeking following reliefs;
"a. Issue appropriate writ, order or direction/quashing the Order dated:29.03.2022 in Appeal No.16/2022, passed by the 1st Respondent whereby the 1st respondent has dismissed the Appeal preferred by the Petitioner;
(as per Annexure-K)
b Quash the Provisional Order
dated:02.11.2021 in No.AEE/D/PO/ 05/2021-22 passed by the 2nd Respondent (as per Annexure -G) 3 c. Quash the Confirmation Order dated 17th January 2022 in No.AEE/D/CO/05/2021-22 passed by the 2nd Respondent (as per Annexure-J)".
2. It is the case of the petitioner that he is the owner of a residential property. That he constructed a residential building thereon after obtaining necessary sanctioned plan dated 31.1.2020 and constructed ground floor and first floor. That on 02.11.2021 a Provisional Order as per Annexure-G was issued by the second respondent alleging that on an inspection conducted by the second respondent, it was found that building on the schedule property was being constructed contrary to the Building plan and that there are several deviations. The petitioner was called upon to show causes within seven days as to why the provisional order not be confirmed.
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3. The petitioner submitted a detailed reply/statement of objections on 12.11.2021 refuting the allegations made in the Provisional Order. At paragraph 6 of the reply/statement of objections, the petitioner has specifically contended as under;
"6. It is reiterated that the aforesaid Provisional Order is issued without conducting any spot inspection and without measuring the building. I am willing to participate in the Joint Spot Inspection/measurement that may be conducted by the officers of the BBMP in my presence and with prior Notice and I am also willing to participate in the further proceedings if any pursuant to such fresh Spot Inspection/ measurements".
4. However, it is contended that without adverting to the statement of objections and complying with the requirement of the inspection of the building, order of confirmation dated 17.01.2022 was passed by the second respondent. Aggrieved by the same, the petitioner filed an appeal under Section 5 253 of the Bruhath Bengaluru Mahanagara Palike Act, 2020 (hereinafter referred to as the 'BBMP Act') before the first respondent. In the appeal at paragraph 4, the petitioner has specifically reiterated and contended as under;
"4. It is emphasized that, I was not served with any Notice of Spot Inspection purportedly or allegedly conducted by the officers of the BBMP to ascertain the alleged deviations as mentioned in the annexed Calculation sheet of the impugned Provisional Order. The official/Officers of the BBMP have not conducted any spot inspections as alleged in the impugned Provisional Order nor have they prepared any spot Mahazaras required in law. The failure on the part of the BBMP to hold any such Spot Inspection, is clearly indicative of the fact that the alleged deviations in the Calculation sheet attached to the Provisional Order, are unfounded and the same is completely contrary to the actual construction."
5. It is seen, while adverting to the contentions of the petitioner as made in the memorandum of appeal of paragraph 4, the first respondent has held as under;
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"4. It is to be noted that, the only contentions of the appellant is that, measurements have not been taken under a mahazar nor his objections are considered. It is to be noted that, the Section 248(1) speaks of the satisfaction of the Zonal Commissioner that the construction or re- construction of any building is being carried or has been completed otherwise than, in accordance with plans, etc., Here, the Assistant Executive Engineer, being the delegated authority of the Zonal Commissioner, satisfied himself that the construction undertaken by the appellant, has deviated from the plan sanctioned. The requirement of law has been complied. The Section 248 of BBMP Act 2020 is not speaking of drawing of any mahazar. The objections of appellant are substanceless. The provisional order under Section 248(1) (2) and the order of the confirmation under Section 248(3) of BBMP Act are in accordance with law."
6. The grievance of the petitioner is that the order passed by the second respondent and confirmed by the first respondent while dismissing the appeal of petitioner is bereft of reasoning, arbitrary and illegal.
7. Learned counsel for the petitioner relies upon the judgment of the Division Bench of this Court 7 in the case of Kavita Podwal vs. The BBMP and others passed in W.A.Nos.967-968/2016 dated 01.08.2017 is specifically refers to the general directions issued by this Court to the BBMP at paragraph 21 of its judgment, which reads as under;
"21. Before we proceed to pass orders on this application, we are constrained to observe that, in our view this is a classic case of misguided and authoritarian misadventure undertaken by the respondent authority. Time has come to convey certain clear guidelines. Accordingly, we issue following general directions to the BBMP:
i) In a notice/provisional order, the name and address of the owner/khatedar shall be clearly mentioned;
ii) The identity of the property and the boundaries shall be delineated in an unambiguous manner,
iii) BBMP shall record specific findings with regard to alleged deviations;
iv) All notices and orders shall be served strictly in accordance with law;8
v) Reasonable time shall be specified in provisional order and granted to the property owner to file his reply;
vi) Before, confirming a provisional order, the officer concerned shall record his satisfaction that the provisional order was served to the owner/khatedar;
vii) Reasons for confirming the provisional order shall be clearly recorded by the officer concerned;
viii) Reasonable time for compliance shall be clearly mentioned in the final order;
ix) No demolition shall be undertaken without recourse to Section 462 of the Act; and
x) These directions shall be strictly complied with".
8. Thus, he submits that the order passed by the respondents suffer from lack of reasoning and same in cryptic and contrary to the general directions issued by this Court.
9. Learned counsel for the respondent -BBMP on the other hand submits that all that the provisions 9 requires is subjective satisfaction of the Zonal Commissioner. Subjective satisfaction need not to be expressed in words. Non expression of subjective satisfaction does not make the order illegal. He submits that the order passed by the respondents does not warrant any interference and seeks for dismissal of the petition.
10. Heard learned counsel for the parties and perused the records.
11. Subjective satisfaction does not mean a satisfaction which is not expressed in terms of words when specifically asked for. In a quasi-judicial proceedings of this nature, it is incumbent upon the authority to give reasons for its conclusion. Particularly, when consequences of the exercise of such power are severe, namely, demolition of construction and deprivation of property. Therefore, it 10 is all the more important that authority should ensure that its satisfaction is made transparent by expressing the same in words. A conclusion without expressing reasons in the form of words cannot be countenanced. As noted above, at paragraph 6 of the statement of objections, the petitioner has specifically pointed out that the Provisional Order was issued without conducting any spot inspection or measuring the building. The petitioner has also expressed his willingness for a joint spot inspection /measurement to be conducted by the any of the officers of the BBMP in his presence. The confirmation order at Annexure-J does not advert to any of this. The said order does not even speak about the so called subjective satisfaction of the second respondent as required under law. In the appeal filed before the first respondent, the petitioner, yet again had specifically requesting for inspection/mahazar and measurement in his presence 11 at paragraph 4 of his reply/statement of objections. However, the said contention of the petitioner has been shut down by the first respondent stating that in terms of Section 248(1) of the BBMP Act, it is only Subjective satisfaction of the Zonal Commissioner, which is required under law and nothing else and that the Assistant Executive Engineer who has been delegated with the authority of Zonal Commissioner, has satisfied himself that construction undertaken by the petitioner was in deviation sanctioned plan and that was sufficient. Thereafter, proceeded to dismiss the appeal.
12. Perusal of the records would reveal that there is no reasoning given by the first respondent while confirming the Provisional Order. No whisper with regard to so called subjective satisfaction with regard to deviation in the building plan constructed by the petitioner. Requirement of giving reasons in the 12 order is a condition precedent to show the application of mind. The order of confirmation of deviation has consequence of demolition of property which are severe in nature. The authorities cannot abdicate this statutory requirement of giving reasons, when an allegation of deviation is made. It was, but natural requirement of the authorities to have given the details of the inspection carried on by them to satisfy with regard to the deviation of the building.
13. No doubt, in the Provisional Order, the second respondent has given deviation of building which are disputed by the petitioner who had called upon the respondent for an another inspection in his presence which is a reasonable demand and ought to have been complied with by the respondents.
14. In that view of the matter, the petition is allowed. The matter is remitted back to the second 13 respondent to carry out the inspection of deviation as pointed out in the provisional order in the presence of the petitioner and dispose of the objections filed by the petitioner to the show cause notice within a period of 30 days from the date of the receipt of the certified copy of this order.
Since the parties are represented by their respective learned counsel, the second respondent shall carryout the inspection in the presence of the petitioner on 07.11.2022 at 11.00 a.m. without any further notice.
Sd/-
JUDGE RU