Karnataka High Court
G Sudheer vs The Commissioner on 31 May, 2016
Bench: N.Kumar, S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY 2016
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MRS. JUSTICE S.SUJATHA
WRIT APPEAL No.4354/2015 (LB - BMP)
BETWEEN :
G.Sudheer
S/o Late G.S.Murthy
Aged about 57 years, No.47, 1st Block,
1st Main Road, Tyagarajanagara,
Bangalore-560 028. ...APPELLANT
(By Sri B.S.Satyanand, Adv.)
AND :
1. The Commissioner
Bruhat Bangalore Mahanagara Palike,
N.R. Square, Corporation Buildings
Bangalore-560 002.
2. The Asst. Executive Engineer
Bruhat Bangalore Mahanagara Palike
Basavanagudi Ward/Sub-Division
1st Floor, Opp. to SSM School
Chennammanakere Achukattu
T.R. Nagar, Bangalore-560 028.
3. The Asst. Engineer-Ward 154
Bruhat Bangalore Mahanagara Palike
Basavanagudi Ward/Sub-Division
-2-
1st Floor, Opp. to SSM School
Chennammanakere Achukattu
T.R. Nagar, Bangalore-560 028.
4. Eshwari Constructions
No.23, 10th Cross, 4th Main
4th Block, Tyagarajanagara
Bangalore-560 028, By Proprietor.
5. Mr. Prashant Rao
S/o Mr. Govinda Rao
Aged about 39 years,
No.47/A, 1st Block, 1st Main,
T.R. Nagar, Bangalore-560 028.
6. The Karnataka Appellate Tribunal,
M.S. Building,
Dr. Ambedkar Road,
Bangalore-560 001. ...RESPONDENTS
[By Sri B.V.Muralidhar, Adv. For R-1 to 3;
Sri Prashant Rao, Party - in - Person (R-5)]
. . . .
This W.A. is filed under Section 4 of the Karnataka
High Court Act praying to set aside the order passed in the
Writ Petition No.27853/2015 dated 13.10.2015.
This W.A. coming on for hearing, this day,
N.Kumar J., delivered the following:
JUDGMENT
This writ appeal is filed against the order dated 13.10.2015 passed in W.P.No.27853/2015 after recording of the submission of Sri L.Kenchappa, the -3- Executive Engineer, who submitted that the orders would be complied within a period of three days.
2. Sri Prashant Rao, the 5th respondent - party-in- person in this appeal filed W.P. No.31115/2014 challenging the constructions put up by the appellant - Sri Sudheer, in the said writ petition and pointed out the illegalities in the said construction. He also had filed a representation before the Corporation Authorities to initiate action for removal and prevention of illegal construction. When they failed to take action, he was constrained to file a writ petition. In the writ petition, the Counsel for the Corporation submitted that in view of the representations made by the 5th respondent dated 19.10.2014, they have initiated action against the appellant. It was submitted that the notice under Section 308 of the Karnataka Municipal Corporation Act, 1976 was issued to the appellant and since, he did not submit his reply, thereafter, they have initiated -4- action under Section 321(1) & (2) of the Act. It was submitted that they will take action initiated by them to its logical conclusion. Recording the said submission, the writ petition was closed.
3. Thereafter, again the 5th respondent filed one more writ petition No.52244/2014 for a direction to the B.B.M.P. to initiate action with regard to the illegal construction put up by the appellant and others. In the said proceedings, the B.B.M.P. pointed out that already a confirmatory order under section 321(3) of the Karnataka Municipal Corporation Act, 1976 has been passed and the same is assailed in an appeal No.885/2014 before the Karnataka Appellate Authority. The learned Single Judge noticing that there was no stay order, it was observed that the authorities are under a duty to give effect to the said order. Accordingly, a direction came to be issued. But it was made clear that the said direction was however subject -5- to any order that may be made by the Tribunal against the respondent-B.B.M.P. in the appeal preferred by the appellant - Sudheer.
4. Thereafter, the 5th respondent filed one more writ petition in W.P. No.27853/2015 seeking a direction to the authorities not to issue the occupancy certificate as the mandatory NOC by the Fire Department is not issued to the appellant and also for a direction for demolition of the illegal structures put up by him in 100% violation of the Bangalore Mahanagar Palike Building bye-laws and for other reliefs. It is in these proceedings when the matter was listed on 13.10.2015, the Counsel for the appellant and the Corporation sought time to file objection to the writ petition. A week's time was granted. The affidavit of Sri.L.Kenchappa was taken on record and also his submission that the order will be complied with within a -6- period of three days. It is that portion of the order, which is under challenge.
5. The learned counsel for the appellant contended that the Corporation has initiated proceedings under the law and a confirmatory order is passed, which is assailed in appeal before the Karnataka Appellate Tribunal. It is only after the decision by the Karnataka Appellate Tribunal, the question of demolition of any illegal structures or buildings would arise. Under these circumstances, on the ground that there is no said order, the Engineer cannot proceed to implement the order passed by the authorities and demolish the structure. When time was granted to them to file objections to the pending writ petition, such an interim order could not have been passed and therefore, he submits that the said order requires to be set-aside.
6. Per contra, the 5th respondent - party-in-person submits that the appellant - Sudheer has put up illegal -7- constructions. The Corporation authorities after initiating proceedings in accordance with law have passed a confirmatory order directing removal of those illegal structures. Though the said order is challenged in appeal, there is no order of stay. Under these circumstances, the Engineer was justified in giving an undertaking to the Court that in terms of the aforesaid writ petition, he would remove the structures. Therefore, no case to interfere with the said order is made out.
7. The learned counsel for the Corporation submitted that the appeal before the Karnataka Appellate Tribunal is heard and is now reserved for orders.
8. In the light of the aforesaid facts and the orders passed in the other writ petitions, though it is observed that in the absence of a stay order, the Appellate Authorities have to implement the orders passed by -8- them, it is also stated that it is subject to the final decision of the orders to be passed by the Karnataka Appellate Tribunal. In the facts of this case we are satisfied that when the aggrieved person has preferred a statutory appeal and now that the appeal has been heard and reserved for orders, no precipitative action shall be taken by the Bangalore City Corporation till the rights of the parties are decided in that appeal. However, at the same time, the appellant, under the cover of the orders passed by this Court, cannot go on constructing the buildings, which according to the party-in-person he is doing. Under these circumstances, the proper course for us is to issue the following directions:
(a) Further steps for removal of structures/buildings, which are held to be illegal by the Bangalore City Corporation Authorities shall be taken by the authorities after the rights of the parties is finally -9- adjudicated and a finding is recorded that the appellant - Sudheer has put up illegal structures.
(b) The appellant - Sudheer, shall not put up any further structures till the dispute between the parties is adjudicated finally.
Writ appeal is disposed of accordingly.
Sd/-
JUDGE Sd/-
JUDGE SPS