Karnataka High Court
P Kishore Kumar vs The Station House Officer on 29 May, 2024
Author: R Devdas
Bench: R Devdas
-1-
NC: 2024:KHC:18084
WP No. 13534 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO.13534 OF 2024 (LB-BMP)
BETWEEN:
P. KISHORE KUMAR
S/O P SUBRAMANYAM
AGED ABOUT 48 YEARS
RESIDING AT BLOCK NO S 2
SLC EUPHORIA, RMV II STAGE
DOLLARS COLONY
BENGALURU 560094
...PETITIONER
(BY SRI. NARASI REDDY G., ADVOCATE)
AND:
Digitally signed 1. THE STATION HOUSE OFFICER
by JUANITA GOVINDAPURA POLICE STATION
THEJESWINI BANGALORE 560064
Location: HIGH
COURT OF 2. THE POLICE COMMISSIONER
KARNATAKA
INFANTRY ROAD
BANGALORE 560001
3. THE CHIEF COMMISISONER
BRUHAT BENGALURU MAHANAGARA PALIKE
N R SQURE, BENGALURU 560002
4. THE JOINT COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE
-2-
NC: 2024:KHC:18084
WP No. 13534 of 2024
BBMP EAST DIVISION,
N R SQURE
BENGALURU 560002
5. THE ASSISTANT EXECUTIVE ENGINEER
BBMP, WARD NO 23
BENGALURU 560038
6. SRI. VAYYAVURU MANOHAR RAO
S/O SRINIVASULU VAYYAVURU
AGED ABOUT 34 YEARS
R/AT VILLA NO.2, CHAITANYA SWOJAS
DOSWORTH LAYOUT
BOREWELL ROAD,
BENGALURU-560066.
...RESPONDENTS
(BY SRI.S.R.KHAMROZ KHAN., AGA FOR R1 & R2
SRI. PAWAN KUMAR., ADVOCATE FOR R3 TO R5
SRI. C.M. NAGABHUSHANA A/W
SRI. SRIHARI A.V., ADVOCATE FOR
SRI. D.S. GIRISH., ADVOCATE FOR R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING
THE ORDER DATED 04/05/2024 PASSED BY THE 3RD
RESPONDENT CHIEF COMMISSIONER BBMP IN APPEAL
NO.132/2023 AS PER ANNEXURE-A CONSEQUENTLY
DIRECTING THE 6TH RESPONDENT TO STOP THE FURTHER
CONSTRUCTION OF THE BUILDING IN THE SUIT SCHEDULE
PROPERTY TILL OBTAINING THE BUILDING PLAN SANCTION
AND LICENSE FROM THE BBMP AUTHORITIES AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
-3-
NC: 2024:KHC:18084
WP No. 13534 of 2024
ORDER
R.DEVDAS J., (ORAL):
Learned Additional Government Advocate takes notice for respondents No.1 and 2. Learned Counsel Sri.Pawan Kumar, who is present in the Court takes notice for respondents No.3 to 5. Learned Counsel Sri.Girish D.S., has entered appearance for respondent No.6.
2. This is the third round of litigation at the hands of the petitioner. Earlier, the petitioner was before this Court in W.P.No.10733/2023, seeking directions to the concerned officers of the respondent-Bruhat Bengaluru Mahanagara Palike (hereinafter referred to as the 'BBMP', for short) to take action against respondent No.6 herein, to stop the unauthorized constructions being put up on the petition schedule property. This Court by order dated 19.07.2023 took note of the memo filed on behalf of the BBMP that a provisional order was passed under Section 248(1) of the Bruhat Bengaluru Mahanagara Palike Act, 2020 (hereinafter referred to as 'the BBMP Act, 2020', for short) and that the confirmation order was passed under -4- NC: 2024:KHC:18084 WP No. 13534 of 2024 Section 248(3) of the BBMP Act, 2020. Consequently, the writ petition was disposed of while directing the Assistant Executive Engineer, Ward No.23, BBMP to continue in accordance with law and take the proceedings to its logical end. It was also observed that if no appeal is filed by respondent No.6 herein before the Chief Commissioner, then the Assistant Executive Engineer may proceed to secure orders for demolition of the unauthorized construction.
3. Subsequent to the orders passed by this Court, respondent No.6 filed an appeal before the Chief Commissioner and the Chief Commissioner passed the impugned order in Appeal No.132/2023 dated 04.05.2024 with a finding that there is a dispute or confusion regarding the identity of the property. The appeal was consequently allowed and the Chief Commissioner directed the Assistant Executive Engineer to reconsider the matter having regard to the provisions contained in Section 248 of the BBMP Act, 2020, after affording an opportunity of hearing to all the parties concerned. The petitioner is -5- NC: 2024:KHC:18084 WP No. 13534 of 2024 aggrieved of the orders passed by the Chief Commissioner.
4. Learned Counsel for the contesting respondent No.6 however submits that even prior to the impugned order being passed by the Chief Commissioner, respondent No.6 has filed an application for building permission on 21.06.2023 and this aspect of the matter has not been considered by the Chief Commissioner. Learned Counsel submits that in terms of sub-section (8) of Section 240 of the BBMP Act, 2020, any person, who constructs in the absence of the sanctioned building plan shall be required to pay such penalty as may prescribed and apply for sanction of building plan in accordance with the provisions of the said chapter. Accordingly, respondent No.6 has already filed an application on 21.06.2023 and it is nearly a year after the application was filed and no orders have been passed by the competent authority. Moreover, it is submitted that the petitioner is not the neighbor, but who has set up an adverse title in respect of the property in question. In that view of the matter, -6- NC: 2024:KHC:18084 WP No. 13534 of 2024 learned Counsel for respondent No.6 submits that the petitioner could have filed a complaint invoking the jurisdiction of the Commissioner under the provisions of the BBMP Act, 2020. The recourse for the petitioner is only to approach a competent civil court to get a declaration of title and not indirectly invoke the jurisdiction of the Chief Commissioner or the Commissioner to restrain respondent No.6 from putting up the construction on the petition schedule property.
5. Having heard the learned Counsel for the petitioner, the learned Counsel for respondent No.6 and the learned Counsel for the respondent-BBMP and on perusing the petition papers, this Court is of the considered opinion that in the impugned order the Chief Commissioner has not considered the relevant contentions and more importantly, the fact that respondent No.6 has filed an application on 21.06.2023 in terms of sub-section (8) of Section 240 of the BBMP Act, 2020, seeking sanction of the building plan and now that the matter is pending consideration before the Assistant Executive -7- NC: 2024:KHC:18084 WP No. 13534 of 2024 Engineer, the Assistant Executive Engineer is also to be directed to consider the plan submitted by respondent No.6. If the Assistant Executive Engineer is not the competent authority to consider the plan submitted filed by respondent No.6, then the Assistant Executive Engineer may also bring to the notice of the competent authority, the application said to have been filed by respondent No.6. At any rate, the grievance of the petitioner as against the construction put up by respondent No.6 cannot be a subject matter of dispute before the Commissioner in terms of Section 248 of the BBMP Act, 2020. The grievance of the petitioner will have to be redressed before the competent civil court. At the same time, since the illegal construction has already been brought to the notice of the officers of the BBMP, the BBMP will have to proceed to take action in accordance with law having regard to the subsequent application filed by respondent No.6.
6. Accordingly, the writ petition stands disposed of with a specific direction to the competent authority of the BBMP to consider the application filed by respondent No.6 -8- NC: 2024:KHC:18084 WP No. 13534 of 2024 on 21.06.2023 and pass necessary orders in accordance with law. At any rate, such an order shall be passed as expeditiously as possible and at any rate within a period of two months from the date of receipt of a copy of this order. Respondent No.5-Assistant Executive Engineer to whom the matter has been remanded by the Chief Commissioner shall await the out come of the application filed by respondent No.6. Once necessary orders are passed by the competent authority on the application filed by respondent No.6, thereafter, respondent No.5-Assistant Executive Engineer shall proceed to reconsider the matter having regard to the directions issued by the Chief Commissioner and the subsequent order that will be passed by the competent authority on the application filed by respondent No.6.
Ordered accordingly.
Sd/-
JUDGE DL CT: JL