Karnataka High Court
Shri M S Shankaraiah vs The Bruhath Bengaluru Mahanagara ... on 21 August, 2018
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF AUGUST, 2018
BEFORE
THE HON'BLE Mr. JUSTICE B. VEERAPPA
WRIT PETITION NO.58745 OF 2017 [LB-BMP]
BETWEEN:
SHRI M.S. SHANKARAIAH
@ M S SHANKARAYYA,
S/O LATE SUBBEGOWDA,
AGED ABOUT 67 YEARS,
AND RESIDING AT # 854,
9TH BLOCK, NAGARABHAVI,
BENGALURU
KARNATAKA-560072
... PETITIONER
(BY SRI. ABHINAY Y.T., ADV.)
AND:
1. THE BRUHATH BENGALURU
MAHANAGARA PALIKE
HUDSON CIRCLE,
BENGALURU,
KARNATAKA-560002
REPRESENTED BY ITS COMMISSIONER
2. THE EXECUTIVE ENGINEER
THE BRUHATH BENGALURU
MAHANAGARA PALIKE,
GOVINDARAJA NAGAR
SUB-DIVISION,
4TH MAIN, CENTRAL LIBRARY,
MC LAYOUT, BENGALURU
KARNATAKA-560040
2
3. THE ASSISTANT EXECUTIVE ENGINEER
THE BRUHATH BENGALURU
MAHANAGARA PALIKE,
GOVINDARAJA NAGAR
SUB-DIVISION,
4TH MAIN, CENTRAL
LIBRARY, MC LAYOUT,
BENGALURU
KARNATAKA-560040
4. SRI V R SHIVANANDHA MURTHY
S/O LATE RUDDRAIAH,
R/AT # 4, "MANGALA",
5TH CROSS, PATTEGARAPALYA,
BEHIND BRINDAVAN APARTMENTS,
BENGALURU-560072
ALSO AT
7, 6TH MAIN ROAD,
HVR LAYOUT, BENGALURU
KARNATAKA-560079
... RESPONDENTS
(BY SRI. I.G. GACHCHINAMATH, ADV., FOR R1 TO R3;
NOTICE TO R4 HELD SUFFICIENT VIDE C.O. DATED 5.6.2018)
THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO DIRECT R-1 AND R-2 TO
TAKE FURTHER ACTION PURSUANT TO ORDER DATED 01.09.2015
PASSED BY R-3 (ANNEXURE D) AND ORDER DATED 30.9.2015
PASSED BY R-2 (ANNEXURE-E).
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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ORDER
The petitioner has filed the present writ petition for a writ of mandamus, directing the Respondents 2 and 3 to take further action in pursuance of the Order dated 1.9.2015 as per Annexure-D and Order dated 30.09.2015 as per Annexure-E passed by the Respondent Nos. 3 and 2 respectively.
2. It is the case of the petitioner that the Respondent No.4 is the owner of the property bearing No.7, 6th Main, HVR Layout, formed in Ward No.36, Bengaluru. The plan was approved for set back of 1.64 meters in the front, 1.09 meters in the back and 1 meter on both sides of site on 29.01.2011. The Respondent No.4 has put up construction even in the set back area in gross violation of the building plan in the year 2013 and there is almost 500% deviation in the rear portion of the building. The petitioner who is adjoining owner has lodged the complaint to Respondents 1 to 3. On enquiry, the Respondent No.4 4 was directed to demolish the deviated portion. The Respondent No.4 filed an appeal before the Karnataka Appellate Tribunal in the year 2014. On 30.01.2015, the appeal filed by the Respondent No.4 came to be allowed. The matter was remanded for fresh enquiry. On 27.07.2015, after conducting spot inspection, the Bruhat Bengaluru Mahanagara Palike ['BBMP', for short] has issued Provisional Order and notice under Sections 321[1] and 321[2] of the Karnataka Municipal Corporations Act, 1976 ['Act', for short]. Since the Respondent No.4 was not responding to the said notice, the Respondent No.3 passed confirmatory order on 1.9.2015. The subject Order was passed under the provisions of Section 462 of the Act on 30.09.2015 and authorized the concerned Assistant Executive Engineer to remove the deviated portions. Inspite of the said order, the Respondents 1 to 3 have not taken any action. Therefore, the petitioner is before this 5 Court for issue of writ of mandamus as prayed for, to implement the Order passed by the BBMP.
3. Notice to Respondent No.4 is held sufficient by the order of this Court dated 5.6.2018.
4. The Respondents 1 to 3 filed statement of objections before this Court and contended that the very writ petition filed by the petitioner is not maintainable and the petitioner has not approached this Court with clean hands. Without disclosing the true facts, the petitioner has filed the present writ petition who has no locus standi to file the same.
5. The respondents further contended that the Respondent No.4 already filed OS No.6853/2017 against the BBMP and obtained an order of injunction. Initially, ex parte injunction was granted and thereafter, after appearance of the BBMP in OS No.6853/2017, after hearing both the parties, injunction order has been 6 confirmed on 22.01.2018 as per Annexure-R1. The BBMP cannot proceed further to implement the order passed by the Authorities. Therefore, the contention urged by the petitioner in the present writ petition is devoid of merits and therefore sought to dismiss the writ petition.
6. Sri. Abhinay Y.T., learned Counsel appearing for the petitioner, reiterating the grounds urged in the writ petition, has contended that inspite of confirmatory order passed, inspite of the order passed under Section 462 of the Act, BBMP has not initiated any action to implement the order as per Annexures-D and E. Therefore, he sought to allow the writ petition for a writ of mandamus as prayed for.
7. Per contra, Mr. I.G. Gachchinamath, learned Counsel for Respondents 1 to 3 reiterating the averments made in the statement of objections, contended that in view of the injunction order granted by the trial Court in O.S. 7 No.6853/2017, after hearing both the parties on 22.01.2018, BBMP has to wait till the matter is decided in the suit and take any action. Therefore, he sought to dismiss the writ petition.
8. Having heard the learned Counsel for the parties, it is undisputed fact that the petitioner who is before this Court made a complaint to the respondents 1 to 3 that Respondent No.4 has violated and constructed deviating the plan issued by the Respondents 1 to 3. The BBMP, after conducting spot inspection, promptly passed a provisional order as well as issued notice under Section 321[2] of the Act.
9. It is also not in dispute that earlier confirmatory order passed by the BBMP was subject matter of appeal before the Karnataka Appellate Tribunal in Appeal No.90/2014. The Tribunal, considering the entire material on record, by its Order dated 30.01.2015, allowed and 8 remanded the matter for fresh enquiry. Thereafter, the impugned order came to be passed. It is also not in dispute that the Respondent No.4 who is the owner of the property in question has approached the competent Civil Court in O.S. No.6853/2017 and after hearing both the parties, the trial Court by Order dated 22.01.2018 granted temporary injunction against BBMP, restraining from demolishing any portion of the suit schedule property or in any way interfering with plaintiff's construction of the building upon the schedule property till pending disposal of the suit. Ex parte injunction granted on 10.10.2017 was made absolute till pending disposal of the suit.
10. In view of the admitted facts stated supra, the petitioner is not entitled to any relief before this Court under writ jurisdiction, that too when the civil suit is pending and temporary injunction is granted by the Trial Court against the BBMP.
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Accordingly, writ petition is dismissed. However, it is needless to observe that it is open for the petitioner to avail appropriate remedy as provided in accordance with law.
Sd/-
JUDGE AN/-