Smt Saraswathi vs The Commissioner on 26 September, 2012

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Karnataka High Court

Smt Saraswathi vs The Commissioner on 26 September, 2012

Bench: Ram Mohan Reddy

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     IN THE HIGH COURT OF KARNATAKA AT BANGALORE

      DATED THIS THE   26TH   DAY OF SEPTEMBER, 2012

                         BEFORE

        HON'BLE MR. JUSTICE RAM MOHAN REDDY

            W.P.No.39027/2009 (LB-RES)

BETWEEN

SMT SARASWATHI
W/O GOPAL JOIS
AGED ABOUT 54 YRS
RESIDING AT NO.1/18,
6TH MAIN, CHIKKA
ADUGODI, WARD NO.66
BANGALORE.
                                         ... PETITIONER

(BY SRI M.S.RAJENDRA PRASAD, SR.COUNSEL FOR
    M/S M.S.RAJENDRA PRASAD AND ASSTS, ADVS.,)


AND

1.    THE COMMISSIONER
      BRUHAT BANGALORE
      MAHANAGARA PALIKE
      N R SQURE,
      BANGALORE-560 002.

2.    THE ASSISTANT EXECUTIVE ENGINEER
      (MADIWALA) AND DELEGATED AUTHORITY OF
      THE COMMISSIONER, BBMP,
      BANGALORE.
                                    ... RESPONDENTS

(BY SRI K.N.PUTTEGOWDA, ADV., FOR R1 & R2)

       THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DTD 7.12.09 PASSED IN APPEAL NO.1312 OF 2007 ON
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THE   FILE   OF    THE   KARNATAKA          APPELLATE    TRIBUNAL,
BANGALORE,    AS    PER        ANNEXURE-A      AND     QUASH    THE
CONFIRMATION ORDER ISSUED DTD 26.11.07 PASSED BY THE
R2 ON BEHALF OF THE R1 AS PER ANNEXURE-C AND ETC.,


      THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:


                               ORDER

Petitioner owner of the immovable property bearing Sy.No.1/18, 6TH Main, Chikka Adugodi, Ward No.66, Bangalore, having purchased the same under the conveyance deed dated 2.11.2001 claims to be the President of an Educational Institution in the name and style of 'Thirumala Education Trust' and put up construction of a building consisting of six floors, though sanction of building plan was for four floors and when the respondent-Bruhat Bangalore Mahanagara Palike initiated action passed a confirmation order under Sec.321(1) of the Karnataka Municipal Corporations Act, 1976, for short the 'Act', which was questioned in Appeal No.1312/2007 before the Karnataka Appellant Tribunal, for short 'KAT', whence

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the appeal was dismissed by order dated 7.12.2009, Annexure-A. Hence, this petition.

2. Although, Sri M.S.Rajendra Prasad, learned senior counsel for the petitioner submits that the action of the respondent-BBMP is not preceded by notice of the proceeding initiated under Sub Sec.(1)(2) of Sec.321 of the Act alleging deviations in the construction of the building, I am afraid, that submission cannot be countenanced. It is the claim of the petitioner in the appeal memorandum in Appeal 1312/07, and as set out in paragraph 2 of the order impugned that appellant caused a reply to the provisional order dt.26.11.2007, passed under Sec.321(1) & (2) of the Act. There cannot be any dispute of the fact that the petitioner put up construction of a building in violation of the building plan duly sanctioned and the building bye-laws, a finding of fact recorded by the KAT. The extract of deviation in the set back area in front of the building is 54%; in the back 84%; on the right 76%; and on the left 84.46%; while deviations in each of the ground floor to

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third floor is 66.80%; and 100% each on the 4th and 5th floors since not sanctioned. In the admitted facts, the question of violation of principles of natural justice, does not arise, since a hearing would not make any difference, a situation that Proff. Wade and Forsyth term as 'Dubious Doctrine'. In other words in the admitted or indisputable facts leading only to one conclusion, also known as useless formality theory, applies on all its fours. Petitioner without adhering to the building bye-laws and the plan duly sanctioned put up the construction in violation of rule of law and hence cannot be heard to contend violation of principles of natural justice.

3. The further submission of the learned senior counsel that under the Akrama and Sakrama Scheme, petitioner is entitled to the relief of regularisation, I am afraid, is also unacceptable. Petitioner is unable to point out to any such scheme, inforce, while on the contrary, it is a matter of fact that a legislation for regularisation when promulgated by the State is subject matter of a

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public interest litigation petition in which the division bench of this Court has directed a stay of its implementations. Even otherwise, there can be no estoppel against the statute, if the petitioner has a committed wrong, liable to be punished under the statute.

4. Having examined the order impugned, I find no legal infirmity occasioning grave injustice to the petitioner calling for interference.

Petition, devoid of merit, is rejected. The BBMP is directed to implement the order under Sub Sec.(3) of Sec.321 of the Act, if the petitioner fails to pull down the structure within 7 days from today, and recover the expenses as an arrears of land revenue from the petitioner. The jurisdictional Officer who did not prevent the construction of the unauthorised construction is directed to be prosecuted under Sec.321(B) of the Act as also liable for disciplinary action in which event the corporation to

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impose commensurate punishment and record the same in the service registers of the Officer concerned.

Sd/-

JUDGE PB

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