Karnataka High Court
M/S G.M. Infinite Dwelling India (P) Ltd vs The Administrator on 5 January, 2023
Author: S.G. Pandit
Bench: S.G. Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2023
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.40936/2015 (LB-BMP)
BETWEEN:
1. M/S. G.M. INFINITE DWELLING INDIA (P) LTD.,
HAVING ITS OFFICE AT NO.06
GM PEARL, BTM LAYOUT, 1ST STAGE
I PHASE, BANGALORE-560068
REP. BY ITS MANAGING DIRECTOR
SRI GULAM MUSTAFA
S/O GULAM RASUL
AGED ABOUT 39 YEARS.
2. SMT. SHAKIRA BEGUM
W/O SAMIULLA SHARIFF
AGED ABOUT 59 YEARS
R/AT NO.20, SINDHI COLONY
II CROSS, WHEELERS ROAD,
BANGALORE-560005.
3. SRI RAHAMATULLA KHAN
S/O LATE H AHMED ALI KHAN
AGED ABOUT 56 YEARS
R/AT NO.50, MILLERS ROAD
II CROSS, BENSION TOWN
BANGALORE-560046.
4. SRI SHAFIULLA KHAN
S/O LATE H AHMED ALI KHAN
AGED ABOUT 54 YEARS
R/AT NO. 47/2, M K PALYA
M M ROAD CROSS, FRAZER TOWN
BANGALORE-560005.
5. SMT. SHAHINA BEGUM
W/O LATE RAFIQ AHMED
AGED ABOUT 52 YEARS
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R/AT NO. 43, LAZAR ROAD CROSS,
FRAZER TOWN, BANGALORE-560005
REPRESENTED BY HER GPA HOLDER
SMT. SHAKIRA BEGUM.
6. SMT SHAMSHAD BEGUM
W/O ABDUL JABBAN
AGED ABOUT 50 YEARS
R/AT NO.4, K H LAKSHMINARAYAN LAYOUT
OIL MILL ROAD, ARVIND NAGAR
BANGALORE-560087.
7. SRI NASEERULLA KHAN
S/O LATE H AHMED ALI KHAN
AGED ABOUT 47 YEARS
R/AT NO. 9/2, II CROSS
LALBAGH FORT ROAD
DODDAMAVALLI
BANGALORE-560004.
8. SMT IRAFANA BEGUM
W/O LIYAKATH ALI BAIG
AGED ABOUT 47 YEARS
R/AT NO.8, M D M ROAD,
II CROSS, FRAZER TOWN
BANGALORE-560005.
9. SMT. FARAH AFZAL
W/O AFZAL AHMED
AGED ABOUT 47 YEARS
R/AT NO.10, I MAIN,
ITI LAYOUT, BENSON TOWN
BANGALORE-560046.
10. SRI FASIULLA KHAN
S/O LATE H AHMED ALI KHAN
AGED ABOUT 44 YEARS
R/AT NO.5/1, 1-A
KENCHAPPA ROAD, FRAZER TOWN,
BANGALORE-560005.
11. SMT. NAZIMA BEGUM
W/O MUKARAM PASHA
AGED ABOUT 44 YEARS
R/AT NO. 22, BOUDILLON ROAD,
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FRAZER TOWN
BANGALORE-560005.
12. SRI NAVEEDULLA KHAN
S/O LATE H AHMED ALI KHAN
AGED ABOUT 39 YEARS
R/AT AMAN MANSION
NO.4, CLEVELAND ROAD
COLES ROAD CROSS, FRAZER TOWN
BANGALORE-560005.
13 . SMT. NAHID TARANUM AHMED
W/O MOHAMMED MUNAWAR AHMED
AGED ABOUT 37 YEARS
R/AT C/O SINGAPRE AIR LINES
P.O. BOX. NO. 25422
SAFAT 13115, KUWAIT,
PRESENTLY RESIDING AT BANGALORE
REPRESENTED BY HER GPA HOLDER
SMT. SHAKIRA BEGUM
(REPRESENT NOS.2 TO 13 ARE
REP. BY ITS BY ITS POWER OF ATTORNEY
HOLDER MR. GULAM MUSTAFA).
...PETITIONERS
(BY SRI M.S.RAJENDRA, ADV.)
AND:
1. THE ADMINISTRATOR
BRUHAT BANGALORE MAHANAGARA PALIKE
NARASIMHARAJA CIRCLE
BANGALORE-560002.
2. THE COMMISSIONER
BRUHAT BANGALORE MAHANAGARA PALIKE
NARASIMHARAJA CIRCLE
BANGALORE-560002.
3. THE ADDITIONAL DIRECTOR
(TOWN PLANNING)
BRUHAT BANGALORE MAHANGARA PALIKE
NARASIMHARAJA CIRCLE
BANGALORE-560002.
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4. THE ASSISTANT EXECUTIVE ENGINEER
BRUHAT BANGALORE MAHANGARA PALIKE
SHETTIHALLI SUB-DIVISION
DASARAHALLI RANGE
RAVEENDRANAGARA
NEAR GOVT. PRIMARY SCHOOL
BANGALORE.
5. SRI VENKATESH
S/O LATE BYLAPPA
AGED ABOUT 43 YEARS
R/O SHETTIHALLI VILLAGE
JANATA COLONY
JALAHALLI WEST POST
BANGALORE-560015.
...RESPONDENTS
(BY SRI B.V.MURALIDHAR, ADV. FOR R1 TO R4
SRI PRASAD B, ADV. FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET
ASIDE THE ORDER DATED 05.08.2015 ISSUED BY THE
ADMINISTRATOR, BBMP THE R-1 VIDE ANNX-T AND SET ASIDE
THE ORDER DATED 24.07.2014 ISSUED BY THE
COMMISSIONER, BBMP THE R-2 HEREIN (ANNX-Q).
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Petitioners are before this Court under Article 226 of the Constitution of India praying for a writ of certiorari to quash the impugned order bearing No.156/2015-16 dated 05.08.2015 passed by the Administrator, BBMP (Annexure-T) and also to quash 5 the order bearing No.BBMP/Addl.Dir/JD North/PR/3855/2014-15 dated 24.07.2014 (Annexure- Q) whereby the sanctioned plan in favour of the petitioners is cancelled; confirming the cancellation of sanctioned plan by rejecting the resolution of the Standing Committee.
2. Heard Sri Rajendra, learned counsel for the petitioners and Sri B.V. Muralidhar, learned counsel for respondents 1 to 4. Perused the writ petition papers.
3. Learned counsel for the petitioners would submit that the schedule property was converted from agricultural to non-agricultural residential purpose at the instance of petitioners 2 to 13 by order dated 20.10.2018. Subsequently petitioners 2 to 13 entered into a joint development agreement with 1st petitioner for putting up a multistoried residential/commercial complex on the schedule property. On 17.08.2009 the 1st petitioner submitted an application to the 2nd respondent-Bruhat Bengaluru Mahanagara Palike (for 6 short 'the BBMP') for sanction of building plan and for issuance of building licence. The 2nd respondent-BBMP on consideration of the application issued building licence and sanctioned plan on 06.08.2010. Thereafter, the 1st petitioner is said to have made application on 25.06.2011 for modification of the sanctioned plan. The respondent-BBMP on 25.06.2011 sanctioned modified plan. The 1st petitioner is said to have constructed multistoried residential apartment over the schedule property. It is submitted that the 5th respondent herein had initiated proceedings against the petitioners 2 to 13 before the Tahsildar with regard to entry of their names in the record of rights. The Tahsildar rejected the 5th respondent's claim after detailed enquiry. Petitioners 2 to 13 filed suit in O.S.No.1429/2018 before the City Civil Court, Bangalore, particularly, for a decree of permanent injunction and it is submitted that the Court granted interim order of status quo restraining the 5th respondent from interfering with peaceful possession of the petitioners. It is submitted that 5th respondent also 7 filed O.S.No.2295/2010 against petitioners 2 to 13 seeking declaration of title and the Court had granted an order of injunction, which was subsequently vacated on 12.05.2010. Challenging the vacation of the interim order, the 5th respondent was before this Court in M.F.A.No.4596/2010 and the same also came to be dismissed. Thereafter on 30.05.2014 the 5th respondent approached the Additional Director, Town Planning, requesting to revoke the licence and sanctioned plan granted in favour of the petitioners on the ground that petitioners have suppressed material fact of status quo operating while obtaining the sanctioned plan. Based on the complaint of the 5th respondent show cause notice dated 28/30.05.2014 was issued to the 1st petitioner calling upon him to explain as to why sanctioned plan and licence should not be cancelled for suppression of fact. The 1st petitioner is said to have submitted its reply on 23.06.2015 bringing to the notice of the respondents that as on the date of submitting the application, no interim order was operating against the 8 petitioners or their property. The 2nd respondent-BBMP under impugned order (Annexure-Q) dated 24.07.2014 cancelled the sanctioned plan as well as the building licence, against which the 1st petitioner is said to have filed appeal before the Standing Committee. The Standing Committee by its order dated 17.03.2015 held that the impugned order dated 24.07.2014 passed by the Commissioner is illegal and unsustainable and set aside the order in exercise of its power under Section 444(1)(e) of the Karnataka Municipal Corporations Act, 1976 (for short 'the Act'). In terms of Section 444 (2) of the Act order of the Standing Committee was referred to the Council/Administrator. The Administrator by order dated 05.08.2015 without providing any opportunity to the petitioner and without application of mind took a decision to set aside the order passed by the Standing Committee and affirmed the order passed by the Commissioner.
4. Sri M.S. Rajendra, learned counsel would contend that the petitioners have not suppressed any material 9 fact while submitting their application for approval of plan as well as for revised or modified plan. He submits that as on the date of filing of application for sanctioned plan or modified plan, no interim order was operating against the petitioners in O.S.No.2295/2010. Moreover, he submits that the Commissioner failed to examine as to suppression of pendency of suit, would have any bearing on the approval or otherwise of building plan and licence. He submits that both the suits filed by the petitioners as well as the 5th respondent was disposed off by judgment dated 04.01.2016, which is placed on record at Annexure-Q along with memo dated 30.06.2021. He submits that the suit filed by the petitioners for injunction is allowed and suit filed by 5th respondent for declaration of title is dismissed. Thus he submits that non-disclosure of pendency of suit is not a material suppression, which would affect the sanction or otherwise of the plan and issuance of building licence. He further also contends that there was no notice to the petitioners before the Adminsitrator, while 10 passing impugned order (Annexure-T) dated 05.08.2015. It is also submitted that while passing Annexure-T, the Administrator has failed to take note of the contentions raised by the petitioners and he submits that Annexure-T is a non-speaking order. Thus he prays for allowing the petition.
5. Sri B.V. Muralidhar, learned counsel for respondents 1 to 4 submits that the petitioners suppressed pendency of the suit, while making application on 25.06.2011 for modified sanctioned plan and issuance of licence. It is submitted that the suit filed by the 3rd respondent was for declaration of title and if the 5th respondent had succeeded in the suit, it would have greater consequences on the sanctioned plan. It is his submission that even though both the suits are disposed off, appeal against the said judgment in RFA No.602/2016 and 603/2016 are pending, wherein this Court has passed an interim order to the effect that any alienation would be subject to the result of the appeal.
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6. Further learned counsel for respondents 1 to 4 would submit that there is violation of condition No.9 of the sanctioned building licence, in that he submits that the respondent-BBMP has reserved its power to cancel the building licence or sanctioned plan, if it is found that petitioners have obtained such building plan or licence by suppressing any material fact. Since the petitioners had suppressed pendency of civil suits, rightly the Corporation cancelled the building licence as well as the sanctioned plan. Thus he prays for dismissal of the writ petition.
7. Bye-law 3.2 of Bruhat Bengaluru Mahanagara Palike Building Bye-Laws 2003 (for short "2003 Bye- Laws") provides for making application and documents to be submitted with the application for obtaining sanctioned plan and building license. The application shall be submitted in the format provided at Schedule-II to 2003 Bye-Laws. Application format requires the applicant to furnish information in 14 columns listed therein. Column No.14 provides for making "any other 12 information". Any other information includes information which the applicant shall furnish relating to the property in question for which, he is seeking license for construction and plan sanction. Bye-Law 3.2.1 requires the applicant to furnish a copy of the title deed or possession certificate of the property, issued by the Competent Authority. The application format at Schedule-II would not require or would not contain the column with regard to pending litigations. If the litigations pertaining to the property to which sanctioned plan or license is requested and if there is any interim order with regard to the property in question, then the concerned person shall furnish information at column No.14 under "any other information". When such information is furnished with regard to pending litigations, it is for the Commissioner to examine as to whether those pending litigations would go to the root of the title or whether there would be any impediment for consideration of application for issuance of license.
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8. Admittedly, in the instant case, as on the date of making application for issuance of construction license and sanction plan, i.e., on 20.10.2009, there was no litigation pending in respect of the suit schedule property. Status-quo order was passed on 06.04.2010 in the suit filed by 5th respondent in O.S.No.2295/2010 and the said status-quo order was vacated on 12.05.2010. The Miscellaneous First Appeal filed against the petitioner before this Court on vacation of status-quo order was also dismissed. Subsequently, the first petitioner submitted an application on 25.06.2011 for modification of the sanctioned plan. As on the said date, there was no interim order operating against the property or petitioner, but, the suits filed by respondent No.5 as well as petitioners No.2 to 13 were pending. Show-cause notice dated 28/30.05.2014 was issued to the petitioner calling upon the first petitioner to submit its reply as to why sanctioned plan and license should not be cancelled for suppression of fact of order of status-quo dated 06.04.2010. The first petitioner 14 submitted reply under Annexure-P dated 24.06.2014. The Commissioner, under impugned order dated 24.07.2014 (Annexure-Q) passed order canceling the building license as well as sanctioned plan on the ground that the respondent has power to withdraw or cancel the sanctioned plan if it is found that the plan or building license is obtained by misrepresentation or suppression of facts. The Commissioner came to the conclusion that the petitioner has suppressed the fact of interim order passed in O.S.No.1429/2008 which was filed by the petitioner against respondent No.5 and interim order of status-quo was against 5th respondent. It is to be noted here itself that in both the suits i.e., in O.S.No.2295/2009 and 1429/2008, the respondent- BBMP is not a party.
9. The petitioner filed appeal before the Standing Committee, challenging the order of cancellation passed by the Commissioner. The Standing Committee, by its order dated 17.03.2015 allowed the appeal on the ground that Bye-Law 3.2 of 2003 Bye-Laws would not 15 provide for or would not require furnishing of any information regarding pendency of civil litigation or any other litigation and therefore, it held that while submitting the application for grant of license, it cannot be held that the petitioner has suppressed information regarding pendency of civil litigation. In terms of Section 444(2) of 1976 Act, the order passed by the Standing Committee was placed before the Administrator and the Administrator by order dated 05.08.2015 took a decision to cancel the order dated 17.03.2015 passed by the Standing Committee and to affirm the order passed by the Commissioner.
10. A perusal of the order passed by the Administrator at Annexure-T dated 05.08.2015, it would not disclose providing opportunity to the first petitioner. Further, it is not a speaking order. When an order is in favour of the petitioner, before annulling such order or modifying such order, the first petitioner would be entitled atleast for a notice. No order could be passed by an Administrator without providing opportunity, especially 16 when it is in favour of a party, against whom an order is to be passed by the higher authority. The Administrator has failed to examine as to whether there was any interim order as on the date of submitting application dated 20.10.2009 for sanctioning of plan as well as for issuance of building license and application dated 28.02.2012 submitted for sanction of revised plan. Infact, it is noticed that as on the above two dates, there was no interim order against the petitioner or petitioners. Further, the Administrator ought to have examined as to whether the suit against the petitioner in O.S.No.2295/2010 would be an impediment for sanction of building plan as well as license. Further, the Administrator ought to have examined as to whether it would amount to suppression of material facts in terms of Building Bye-Laws.
11. Learned counsel Sri.Rajendra also contended that Section 444(2) of 1976 Act, requires reference of the order within 60 days to the Administrator and the present reference to Administrator is beyond 60 days. 17 But, learned counsel Sri.B.V.Muralidhar for respondent Nos.1 to 3 from the statement of objections points out that the Standing Committee passed an order on 17.03.2015 and the same was brought to the notice of the Commissioner along with legal opinion dated 07.04.2015 and the Commissioner has taken a decision to refer the order of the Standing Committee to Corporation Council. Accordingly, a reference was sent to the Council Secretary along with a letter dated 08.04.2015. Thus, the said contention of the learned counsel for the petitioner has no merit.
12. For the reasons recorded above, I am of the view that the order passed by the Administrator dated 05.08.2015 is unsustainable and requires to be quashed, with a direction to the Council/Administrator to provide an opportunity to the petitioner and after hearing the petitioners, pass appropriate order in accordance with law, taking note of the observations made above.
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13. With the above direction, the writ petition stands disposed of.
Sd/-
JUDGE NG/mpk/-* CT:bms