Karnataka High Court
Smt B S Latha vs Chief Officer on 9 February, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:5690
WP No. 39097 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 39097 OF 2017 (LB-RES)
BETWEEN:
SMT. B.S. LATHA,
W/O. N. MANJUNATHA,,
AGED ABOUT 40 YEARS,
R/AT. DOOR NO.2888/1,
NEAR YASHASVINI SAMUDAYA BHAVANA,
OLD HEMAGIRI ROAD, HEMAVATHI EXTENSION,
K.R. PET TOWN, K.R.PET TALUK,
MANDYA DISTRICT.
...PETITIONER
(BY SRI. KESHAV MURTHY K.R., ADVOCATE)
AND:
1. CHIEF OFFICER,
TOWN MUNICIPAL COUNCIL,
K.R. PET TALUK,
MANDYA DISTRICT-571401.
2. SMT. P.K. LEELAVATHI,
Digitally signed W/O. CHANNEGOWDA,
by AGED ABOUT 50 YEARS,
NARAYANAPPA
LAKSHMAMMA R/AT DOOR NO.2888/3,
Location: HIGH NEAR YASHASVINI SAMUDAYA BHAVANA,
COURT OF OLD HEMAGIR ROAD, HEMAVATHI EXTENSION,
KARNATAKA K.R.PET TOWN, K.R. PET TALUK,
MANDYA DISTRICT-571401.
...RESPONDENTS
(BY SRI. H. PAVAN CHANDRA SHETTY, ADV. FOR R1;
SRI. B.K. MOHAN, ADV. FOR R2 )
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
MANDAMUS TO THE 1ST RESPONDENT TO REMOVE THE ENTIRE
UNAUTHORISED CONSTRUCTION IN ACCORDANCE WITH THE
PROVISIONS OF THE KARNATAKA MUNICIPALITIES ACT AND BYE-
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NC: 2024:KHC:5690
WP No. 39097 of 2017
LAWS PUT UP BY THE 2ND RESPONDENT IN [KHATHA]
ASSESSMENT NO.2888/3 SITUATED AT OLD HEMAGIRI ROAD,
HEMAVATHI EXTENSION, NEAR YASHASVINI SAMUDAYA BHAVAN,
K.R.PET TOWN, K.R.PET TALUK, MANDYA DISTRICT FORTHWITH
TO AVOID DAMAGE TO THE PROPERTY AND LIFE OF THE
PETITIONER'S FAMILY BY CONSIDERING THE APPLICATION
DATED 4.8.2017 FILED BY THE PETITIONER AT ANNEXURE-B;
ISSUE WRIT OF MANDAMUS TO THE 1ST RESPONDENT TO
ASSESS THE AREA OF THE BUILDING CONSTRUCTED
ORIGINALLY AND THE MATERIAL USED FOR THE PURPOSE OF
CONSTRUCTION OF GROUND FLOOR AND TO 1ST, 2ND, 3RD
FLOORS THROUGH ITS ENGINEERS AND REMOVE THE SAID
ENTIRE UNAUTHORISED CONSTRUCTION ON THE PROPERTY
BEARING [KHATHA] ASSESSMENT NO,.2888/3 BELONG TO THE 2ND
RESPONDENT FORTHWITH.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 04.12.2023, COMING ON FOR PR0NOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
a. Issue a writ of mandamus to the 1st respondent to remove the entire unauthorised construction in accordance with the provisions of the Karnataka Municipalities Act and Bye laws put up by the 2nd respondent in (Khata) Assessment No.2888/3 situated at Old Hemagiri Road, Hemavathi Extension, near Yashasvini Samudaya Bhavan, K.R.Pet Town, K.R.Pet Taluk, Mandya District forthwith to avoid damage to the property and life of the petitioner's family for considering the application dated 4.8.2017 filed by the petitioner at Annexure-B;-3-
NC: 2024:KHC:5690 WP No. 39097 of 2017 b. Issue a writ of mandamus to the 1st respondent to assess the area of the building constructed originally and the material used for the purpose of construction of ground floor and to 1st, 2nd and 3rd floors through its Engineers and remove the bearing (Khata) Assessment No.2888/3 belong to 2nd respondent forthwith;
c. Issue a writ of certiorari to quash the speaking order passed by the 1st respondent in No Ka Ra Pe Pu Ka Ni C R dated 27.11.2017 under Annexure-H. d. Issue any other writ, order or direction to the respondents deem fit in the circumstances of the case.
2. The petitioner claims to be the owner of residential building bearing assessment No.2888/1 and Respondent No.2 is the owner of property bearing assessment No.2888/3, both situated at Hemavathi extension, Old Hemagiri Road, K.R.Pet taluk, Mandya district and are neighbours. The petitioner claims to have obtained the permission/licence and plan sanction in respect of her property and has put up construction thereon and is residing therein.
3. The petitioner contends that respondent No.2 without obtaining any licence or without getting any plan -4- NC: 2024:KHC:5690 WP No. 39097 of 2017 sanction, had put up a construction on the ground floor in the year 1997-98 by violating the Building Byelaws inasmuch as the setbacks had been completely violated on all sides. Even that being so, thereafter respondent No.2 without obtaining any permission or sanction, has put up further construction of the 1st, 2nd and 3rd floors on the existing ground floor and the same lie in the same location as the ground floor was constructed, thereby the violation of setbacks has continued upward to third floor, blocking the light and air to the petitioner.
4. The petitioner had requested the respondent No.2 not to go ahead with the construction, which was not heeded to by respondent No.2. The petitioner complained to the respondent No.1 who did not take any action. Therefore, no action having been taken in terms of Section 187 of The Karnataka Municipalities Act, 1964 ['KMC Act' for short], the -5- NC: 2024:KHC:5690 WP No. 39097 of 2017 petitioner is before this Court seeking for the aforesaid reliefs.
5. During the pendency of the above matter, the respondent No.1 issued show cause notice to respondent No.2 on 13.09.2017 towards which respondent No.2 replied stating that a contractor had been hired and it is he who has constructed in violation, which was not to the knowledge of Respondent No.2 and any excess construction could be regularised by payment of penalty, and as such had offered to make payment of penalty which was rejected by the respondent No.1. Despite the same, the respondent No.1 did not take necessary action against the respondent No.2 and the illegalities on the part of respondent No.2 were continued. It is contended that there is collusion between the officers of respondent No.1 and respondent No.2.
6. It is further stated that when the illegalities of respondent No.2 was pointed out to the respondent -6- NC: 2024:KHC:5690 WP No. 39097 of 2017 No.2, the husband of respondent No.2 sought to assault the petitioner and her husband, as regards which the complaint had been filed which came to be registered under FIR No.35/2018.
7. Sri.Keshav Murthy.K.R, learned counsel for the petitioner would submit that, 7.1. The Respondent No.2 has no regard for the law and has blatantly and wantonly violated the applicable laws including the Building Bye-laws such that even without obtaining sanction plan or licence, construction has been put up in gross violation of the Building Bye-laws not leaving any setbacks causing grievous hardship and injury to the petitioner. The further construction which had been put up on the 1st, 2nd and 3rd floors has virtually blocked light and air to the property of the petitioner. He, however, submits that the petitioner does not wish to disturb the ground floor, which was -7- NC: 2024:KHC:5690 WP No. 39097 of 2017 constructed some time ago, but the petitioner would be content with respondent No.2 leaving adequate setbacks insofar as the 1st, 2nd and 3rd floors are concerned, so that the petitioner can live a proper life in her house.
7.2. His submission is also that there being collusion between the officers of the respondent No.1 and respondent No.2, several documents have been fabricated, no licence having been issued by the respondent No.1 to respondent No.2 during the pendency of the above proceedings, it is sought to be contended that as if there is a licence issued which is a fabricated document as regards which necessary action would have to be taken and in regard to which he has filed an application under Section 340 of the Code of Criminal Procedure, 1973 [in short Cr.P.C]. 7.3. Be that as it may, he submits that even taking into account the building plan allegedly sanctioned, the construction is not in terms of -8- NC: 2024:KHC:5690 WP No. 39097 of 2017 such alleged sanction plan and even such alleged sanction plan has been violated by the respondent No.2. Admittedly, there is no plan sanction for the 1st, 2nd and 3rd floor, as such, those construction would have to be demolished.
7.4. Learned counsel for the petitioner submits that from the very reports which have been filed by the respondent No.1, it is clear that there is a violation of both setbacks and the construction's of respondent No.2. Insofar as ground floor is concerned and as regards the first and second floors are concerned, admittedly respondent No.2 has not obtained any licence, the letter submitted by her would categorically indicate that she was under the mistaken impression that the contractor had obtained a plan sanction, which has not in fact been obtained and therefore his submission is that both in respect of violation in the ground -9- NC: 2024:KHC:5690 WP No. 39097 of 2017 floor and as regards the first and second floor, action would have to be taken against the respondent No.2. He, however, submits that since the construction put up on the ground floor is long ago, the petitioner does not wish to take any action as regards the violation in the ground floor so long as action is taken. As regards the violation in the first and second floors are concerned, he submits that the petitioner's grievance would be resolved.
8. Sri.B.K.Mohan, learned counsel for the respondent No.2 would submit that, 8.1. The construction which has been put up by respondent No.2 in the ground floor is in terms of plan sanction issued by respondent No.1 and as such, there is no violation of the plan sanction. The construction which has been put up on the first and second floors being above the ground floor constructed, there is no
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NC: 2024:KHC:5690 WP No. 39097 of 2017 additional construction made on any of the floors, therefore, the said construction also according to him, is proper and correct, hence there is no violation.
8.2. It being permissible for respondent No.2 to apply to respondent No.1 for sanction of plan, respondent No.2 may be permitted to apply for such sanction in order to regularise the construction put up by respondent No.2. 8.3. His submission in respect of the petitioner's property is concerned is that the petitioner has also violated the Building Byelaws and the plan sanction and as such, action needs to be taken against the petitioner also.
9. Sri.Pawan Chandra Shetty, learned counsel for respondent No.1 submits that:
9.1. It is on account of the fight between the petitioner and respondent No.2, that respondent No.1 has been dragged in and its
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NC: 2024:KHC:5690 WP No. 39097 of 2017 officers have been made to defend these proceedings by expending huge amount of time. Insofar as petitioner is concerned, he submits that there are setback violations on the ground floor and the first floor, though there is an excess construction on the ground floor, there is no excess construction on the first floor.
Setback area
In In Violation in
percentage
m2 'Sqf'
Setback area according to
the building bye-law
Ground floor
74.43 801.1
2 7
First floor 111.9 1205.
70 23
Setback area in the building
constructed Ground
floor-
Ground floor 20.82%
58.93 634.3
1
First floor First floor -
148.6 1600.
24.67%
6 16
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NC: 2024:KHC:5690
WP No. 39097 of 2017
Setback violation
Ground floor 15.50 166.8
4
111.4
First floor 10.35 0
Built-up area
In In Violation in
percentage
m2 'Sqf'
Building measurement
according to the building
bye-law
Ground floor
111.3 1198.
3 34
First floor
73.80 794.3
7
Ground
Measurement of the floor-
building constructed 7.93%
Ground floor
120.1 1293.
6 39 First floor -
nil
First floor 30.43 327.5
4
violation
Ground floor 8.83 95.04
First floor nil nil
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NC: 2024:KHC:5690
WP No. 39097 of 2017
9.2. His submission is that if permitted by this court, necessary action would be taken both against the petitioner and respondent No.2.
10. The events which have transpired in this court post the filing of the petition are as under:
10.1. Affidavit of respondent No.1 came to be filed on 13.09.2017 stating that the Chief Officer confirms having received a representation from the husband of the petitioner on 4.8.2017 and 16.08.2017. He has also stated that an endorsement had been issued by him that no license was obtained by respondent No.2 for construction and a letter being addressed to the Inspector of police, K.R.Pet on 4.09.2017 to take necessary action.
10.2. A report was filed by respondent No.1 on 11.10.2017 stating that a show cause notice dated 13.09.2017 had been issued to the respondent No.2, who replied to the same on
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NC: 2024:KHC:5690 WP No. 39097 of 2017 21.09.2017 stating that the contractor had undertaken to obtain license and start building as per the license, since the contractor left the construction half completed and discontinued the service, the balance construction was completed by respondent No.2 believing that the contractor had taken the permission/license.
10.3. It is further stated by respondent No.2 that the contractor had cheated her by starting the construction without obtaining necessary license. In that background she had made payment of penalty on 4.09.2017 and sought for regularisation of the construction and further states that she was under the impression that due to the penalty having been paid, the construction was regularised and had called upon respondent No.1 to withdraw the notice.
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NC: 2024:KHC:5690 WP No. 39097 of 2017 10.4. Respondent No.1 has instead issued a final notice on 28.09.2017, directing demolition of the alleged illegal structure, when the respondent No.2 sought for time for availing the benefit of the Akrama-Sakrama scheme which came to be rejected and in that background respondent No.1 had stated that, given some time, necessary steps would be taken for demolishing the illegal structure put up by respondent No.2.
10.5. On 29.11.2017, the respondent No.1 filed an order dated 27.11.2017 whereunder it was stated that both parties were directed to appear before the Town Municipal Council office on 25.10.2017. When they appeared and submitted their written grievances, a spot inspection was conducted on 26.10.2017 by the Junior Engineer, Revenue Officer, Revenue Inspector, Tax collector. A detailed enquiry having been held in terms of Section 187-A of
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NC: 2024:KHC:5690 WP No. 39097 of 2017 the Karnataka Municipalities Act, 1964 a direction had been issued to remove the additional third floor. It is further stated in the final order that the directions has been issued to the petitioner to reduce the height of the compound wall to 1.5 mts and remove the encroachment on the road.
10.6. The petitioner filed an objection to the speaking order dated 29.11.2017 on 14.03.2018 stating that the construction put up by respondent No.2 was without any permission or license. Hence the question of regularising the same would not arise and as such first and second floor being illegal are required to be demolished. Section 187-A does not provide for regularisation of the building. 10.7. The petitioner had further stated that insignificant differences in the height which would not make any difference, but, however, is willing to reduce the height of the compound
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NC: 2024:KHC:5690 WP No. 39097 of 2017 wall as directed. Insofar as alleged encroachment of the road on the Southern side, it is stated that collapsable/sliding gate has been installed at the compound of the petitioner which is not an encroachment of the road.
10.8. On 5.06.2018 an affidavit was filed by the Chief Officer of respondent No.1 stating that in terms of section 187-A of the KMC Act, there is a provision to regularise the building upto 50% in case of residential building where the setback provided is less than that prescribed. 10.9. The petitioner at this stage filed an application to amend the petition stating that despite the order passed by this court not to raise any further construction, the respondent No.2 had continued with the said construction and had challenged the speaking order dated 27.11.2017 referred to above and sought for its quashing. The said application came to be
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NC: 2024:KHC:5690 WP No. 39097 of 2017 allowed and amendment petition came to be filed on 4.11.2019. On 12.01.2022, a memo came to be filed by the petitioner enclosing various documents including a complaint in Crime No. 35/2018 filed by the petitioner against respondent No.2 under Section 341, 504, 506, 323, read with 34 of the Indian penal code, 1860 [in short IPC], which upon investigation ended in a charge sheet being filed.
10.10. On 10.06.2022, the petitioner filed building licence and plan approval issued by respondent No.1 to respondent No.2 to contend that the said plan alleged to have been issued on 2.12.2018 was only for the ground floor and there is no plan issued in respect of the first and second floors.
10.11. The respondent No.1 along with memo dated 13.06.2022 has filed a sketch of the property of respondent No.2 indicating that on the southern
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NC: 2024:KHC:5690 WP No. 39097 of 2017 side i.e. left side of the building the setback starts from 1.06 mtrs and becomes zero going towards the west. On the northern side, the setback is 0.06 mtrs, so also the setback on eastern and western side is 0.06 mtrs. On 6.07.2022, the petitioner filed a memo along with photos stating that the excess construction of the compound wall had been removed, so also the gate on the southern side had been removed and therefore, it was contended that there is no violation on part of the petitioner. 10.12. Respondent No.2 filed an affidavit on 23.09.2022 stating that she had obtained a building licence from respondent No.1 for the ground floor and that she had not played any mischief in obtaining the building licence prior to the construction of the building. 10.13. The respondent No.1 filed a memo on 7.09.2023, once again enclosing a sketch of the property with the setback and along with it he
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NC: 2024:KHC:5690 WP No. 39097 of 2017 had submitted a representation giving measurements indicating that there is 64.65% violation in the setback and 147.14% violation in the construction put up. The respondent No.2 on 19.09.2023 produced photographs of the property of the petitioner and respondent No.2 and the sketch of the house of petitioner, stating that the petitioner has also not maintained relevant setbacks. A copy of the plan sanction dated 7.02.2005 of respondent No.2 for the ground floor was also produced along with it.
10.14. The Respondent No.1 filed a memo dated 27.09.2023 stating that in spite of search of the entire papers, the plan sanction issued in favour of respondent No.2 was not found and while giving details of the Executive Officers who had worked for respondent No.1 from 1.5.2006 to 25.08.2023 as also Junior Engineers from 1.04.2005 to the year 2022 is
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NC: 2024:KHC:5690 WP No. 39097 of 2017 placed on record. Photographs had also been filed evidencing the search made by officers of respondent No.1 on its files. A perusal of the said photographs makes out the deplorable state in which the files are maintained by the respondent No.1. From the very said photographs, it is clear that many of the said files are torn, crumpled and have virtually been treated as wastepaper.
10.15. On 5.10.2023 a report has been submitted in compliance with the order dated 19.09.2023 causing the measurement of the property of the petitioner wherein it is indicated that though construction carried out has been mentioned in sq.mtrs and sq.ft., there is no details provided as regards the violation, hence respondent No.1 was directed to carry out inspection and submit a detailed report as regards the violation by the petitioner.
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NC: 2024:KHC:5690 WP No. 39097 of 2017 10.16. On 26.10.2023 a list of all Chief Officers who had worked with respondent from 1.04.2000 till date as also Junior officers who worked from 1.04.2000 to 31.03.2022 has been placed on record.
10.17. On 15.11.2023 an affidavit of the respondent No.2 was filed stating that she had obtained building licence and got building plan from the respondent No.1 and enclosing the original of the said building plan dated 7.02.2005 as regards the ground floor of the respondent No.2 property.
10.18. On 20.11.2023 an affidavit came to be filed by respondent No.1 indicating setback violation of 20.82% in the ground floor, 24.67% in the first floor and built up area violation of 73.9% in the ground floor. Another memo dated 20.11.2023 came to be filed giving the detailed measurements.
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NC: 2024:KHC:5690 WP No. 39097 of 2017 10.19. The petitioner on 20.11.2023 filed an application under Section 340 of Cr.P.C. stating that respondents No.1 and 2 have made false statement before this Court which affects administration of justice amounting to an offence under Section 195(1)(b)(i) of the Cr.P.C. requiring this Court to refer the matter for trial to the jurisdictional Magistrate under Section 340 of the Cr.P.C.
11. Heard Sri.Keshav Murthy, learned counsel for the petitioner, Sri.H. Pavan Chandra Shetty, learned council for the Respondent no.1 and Sri. B.K. Mohan, learned council for the respondent no.2. Perused papers.
12. The points that would arise for consideration in this matter are:
i. Whether the construction put up by respondent No.2 on first and second floors without obtaining a sanction plan can be said to be illegal so as to direct the demolition thereof?
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NC: 2024:KHC:5690 WP No. 39097 of 2017 ii. Whether the violations alleged against the petitioner require action be taken?
iii. What order?
13. I answer the above points as under:
14. ANSWER TO POINT NO.1: Whether the construction put up by respondent No.2 on the first and second floors without obtaining a sanction plan can be said to be illegal so as to direct the demolition thereof?
14.1. The facts and documents relating thereto have been detailed hereinabove. Though there are several allegations which have been made as regards the respondent No.2 having obtained plan sanction or not before construction, the plan sanction for ground floor having been produced and the veracity not having been doubted by respondent No.1, I am of the considered opinion that at this stage the plan sanction produced by the respondent No.2 would have to be taken into consideration. For
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NC: 2024:KHC:5690 WP No. 39097 of 2017 the purpose of determining whether the construction is legal or not since, it is only when the plan is sanctioned and construction is carried out, then the construction shall become legal, if no plan sanction is obtained, then the construction shall become illegal. Now that the construction is legal, what would have to be ascertained is whether the construction is in terms of the plan sanction and the Building Byelaws, since no plan sanction can be issued contrary to the Building byelaws. 14.2. Inspection having been carried out in respect of the property of respondent No.2, a report has been submitted stating that there is violation of construction on part of the respondent No.2 as under:
Setback area In In Violation in percentage m2 'Sqf'
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NC: 2024:KHC:5690 WP No. 39097 of 2017 Setback area according 1813.27 to the building bye-law 168.52 Setback area in the building constructed 59.56 640.86 64.65% Setback violation (168.52-59.56) 108.96 1172.41 Built-up area In In Violation in percentage m2 'Sqf' Building measurement according to the building bye-law 168.57 1813.81 (G.F + F.F) 147.14% Measurement of the building constructed 416.619 4482.82 (G.F + F.F + S.F) violation 248.04 2669.01
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NC: 2024:KHC:5690 WP No. 39097 of 2017 14.3. It is therefore clear that there is a gross violation of the setback area committed by respondent No.2 and that this construction is not as per the plan sanction and/or the Building byelaws. It is however a point to be noted that the construction is of the year 2009. 14.4. It is subsequently in the year 2017, respondent No.2 put up the construction of the first, second and third floors. The third floor being demolished by respondent No.1, what remains to be considered is the validity and legality of first and second floors.
14.5. The aforesaid report would indicate that the violations in terms of the setbacks in the ground floor would continue for first and second floor also. Therefore on account of such violation, there are FAR violation on account of both the floors.
14.6. The construction of ground floor having occurred in the year 2009, if at all respondent
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NC: 2024:KHC:5690 WP No. 39097 of 2017 No.2 wanted to put up construction above it in accordance with the law, an application for modification of the earlier plan would have to have been filed by respondent No.2, which would have been considered by the respondent No.1 by taking into account the plan sanction already granted in respect of the ground floor and also the construction made on the ground floor. For the purpose of approval of first and second floor, it would have been but necessary for the respondent No.2 to have removed all violations in respect of the ground floor, more particularly as regards the setback area and thereafter put-up construction on the balance area on the first and second floors. Instead of doing so, respondent No.2 has straightaway put up a construction on the walls of the ground floor, the ground floor walls being load bearing and not a column structure. Thus, the violation insofar as respondent No.2 is concerned with
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NC: 2024:KHC:5690 WP No. 39097 of 2017 regard to the ground, first and second floor is categorically established by the reports which have been filed and submissions made by respondent No.2 herself.
14.7. In that view of the matter, an option was provided to respondent No.2 to at least now verify if the walls of the ground floor can be shifted inside to be in conformity with the plan sanction granted/Building byelaws and accordingly modification to be made in the first and second floor, so that the setback and constructed area are brought in compliance with the Building byelaws.
14.8. Sri.B.K.Mohan, learned counsel after enquiry with his client and on instructions given by her, submits that since the ground floor is a load bearing wall, shifting of the walls of the ground floor is not possible, so also the shifting of walls of first and second floors are not possible.
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NC: 2024:KHC:5690 WP No. 39097 of 2017 14.9. The only opportunity and option available to respondent No.2 was to bring the building in conformity with the Building byelaws which now has been categorically stated is not possible. Hence, I am of the considered opinion that the construction put up on first and second floor cannot be saved by applying for modification of the plan sanction since no such modification can be granted. The walls of first and second floor also cannot be shifted since there is no load bearing wall below it, to support it. Hence, the construction on the first and second floor firstly being illegal without a plan sanction and secondly being in violation of the Building byelaws would be required to be demolished. 14.10. Hence I answer Point No.1 holding that the construction put up by respondent No.2 on the first and second floors without obtaining a sanction plan is illegal and the same not capable of being remedied is required to be
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NC: 2024:KHC:5690 WP No. 39097 of 2017 directed to be demolished, hence, it is so directed.
15. ANSWER TO POINT NO.2: Whether the violations alleged against the petitioner require action be taken?
15.1. Report submitted by respondent No.1 categorically indicating that there are violations of setback and FAR, the very same Rules which apply to respondent No.2 would apply to petitioner also. Merely because the petitioner is a complainant, would not mean that the petitioner is not required to follow applicable Building byelaws. In that view of the matter, excess construction which has been put up by the petitioner would also have to be demolished to bring it in line with the plan sanction/Building byelaws.
15.2. At this stage, Sri.Keshav Murthy, learned counsel for the petitioner submits that the petitioner will remove all the violations at her
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NC: 2024:KHC:5690 WP No. 39097 of 2017 cost. His submission is placed on record. An undertaking to that effect to be filed by the petitioner.
15.3. In my considered opinion six months' time is required to be granted to the petitioner to bring the building in conformity with the plan sanction/Building byelaws. Hence, the undertaking to also reflect such construction would be brought in compliance within a period of six months from the date of receipt of copy of this order.
16. ANSWER TO POINT NO.3: What Order?
16.1. In the above circumstances, I pass the following:
ORDER i. The petition is partly allowed.
ii. Respondent No.2 is provided 90 days from the date of receipt of a certified copy of
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NC: 2024:KHC:5690 WP No. 39097 of 2017 this order to remove all the material situate on the first and second floor so as to enable respondent No.2 to salvage as much as possible from the same.
iii. A further period of 60 days' thereafter is granted to respondent No.2 to demolish the first and second floor at her cost. If the same is not done within a period of 60 days, respondent No.1 is directed to cause demolition of first and second floor by following the applicable law at the cost of respondent No.2 which shall be recovered from respondent No.2 as arrears of land revenue.
iv. Insofar as the petitioner is concerned, a period of six months' is granted to the petitioner to bring his building in compliance with his plan sanction/Building byelaws. If the same is not done by end
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NC: 2024:KHC:5690 WP No. 39097 of 2017 of six months from the date of receipt of copy of this order, then respondent No.1 is directed to cause demolition of such portions of the property of the petitioner as are in violation of the plan sanction/Building byelaws by following the applicable law at the cost of respondent No.1 to be collected from the petitioner as arrears of land revenue.
17. GENERAL DIRECTIONS:
17.1. The photographs which have been produced by respondent No.1 and the time which has been taken by respondent No.1 to give details of the officers who were working at respondent No.1 as also to produce the file of plan sanction in respect of property of respondent No.2 categorically indicates the mess in which the documents of respondent No.1 are in. The
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NC: 2024:KHC:5690 WP No. 39097 of 2017 documents relating to plan sanction, etc., are very important documents of that particular Urban Authority which need to be stored and preserved in a proper manner and are accessible easily.
17.2. Hence, the photographs which have been placed before this Court are directed to be placed before the Prl. Secretary, Urban Development Authority, who is in turn directed to along with Secretary, e-governance to prepare an action plan for digitising all the records of respondent No.1 and similarly situate Municipal councils so as to enable its officers to access those documents easily at a click of a button instead of spending days on end searching for the files when called for by Court of law or when required for any other purpose.
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NC: 2024:KHC:5690 WP No. 39097 of 2017 17.3. A detailed project plan to be placed before this Court within a period of two months from today.
17.4. Though the above petition is disposed, re-list on 03.04.2024 at 2.30 p.m. for reporting compliance with the general directions.
Sd/-
JUDGE LN List No.: 19 Sl No.: 1