Karnataka High Court
Dr B Gurappa Naidu vs The Commissioner on 10 July, 2023
Author: R Devdas
Bench: R Devdas
-1-
NC: 2023:KHC:23760
WP No. 4335 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO.4335 OF 2023 (LB-BMP)
BETWEEN:
DR B GURAPPA NAIDU
S/O B.V. NAIDU,
AGED 62 YEARS
R/AT NO. 989/A,
14TH CROSS, 21ST MAIN,
BANASHANKARI II STAGE,
BENGALURU - 560070.
...PETITIONER
(BY SRI. K.N. PHANINDRA, SR. COUNSEL FOR
SMT. LATHA S SHETTY., ADVOCATE)
AND:
Digitally signed
by JUANITA
THEJESWINI 1. THE COMMISSIONER
Location: HIGH BRUHAT BANGALORE MAHANAGARA PALIKE
COURT OF
KARNATAKA N.R.SQUARE,
BENGALURU - 560001.
2. THE JOINT COMMISSIONER
BENGALURU SOUTH DIVISION,
BRUHAT BANGALORE MAHANAGARA PALIKE,
BBMP COMPLEX, 9TH MAIN ROAD,
2ND BLOCK, JAYANAGAR,
BENGALURU - 560011.
-2-
NC: 2023:KHC:23760
WP No. 4335 of 2023
3. THE ASSISTANT DIRECTOR
TOWN PLANNING (SOUTH) BBMP,
BBMP COMPLEX, 9TH MAIN ROAD,
2ND BLOCK, JAYANAGAR,
BENGALURU - 560011.
4. THE ASSISTANT EXECUTIVE ENGINEER
BRUHAT BANGALORE MAHANAGARA PALIKE,
BANASHANKARI SUB-DIVISION,
YEDIYUR, BENGALURU - 560028.
5. K.R . CHOWDARY
S/OLATE KARJALA GANGI NAIDU,
AGED MAJOR,
R/AT NO. 24/A, 37TH A CROSS,
JAYANAGAR 8TH BLOCK,BENGALURU - 560082.
6. SMT. K. INDIRA CHOWDARY
W/O K.R. CHOWDARY,
AGED MAJOR,
R/AT NO. 24/A, 37TH A CROSS,
JAYANAGAR, 8TH BLOCK,BENGALURU - 560082.
...RESPONDENTS
(BY SRI. MONESH KUMAR K B., ADVOCATE FOR R1 TO R4
2 SRI. D.R. RAVISHANKAR, SR. COUNSEL FOR
SRI. AKSHAY S VASIST, ADVOCATE FOR R5 & R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARING
THE ACTION OF THE R1 TO 4 IN PERMITTING THE ILLEGAL
CONSTRUCTION PU UP BY THE R5 AND 6 ON THE SCHEDULE
PROPERTY CONTRARY TO THE PLAN SANCTION DATED
31.12.2020 BEARING LP NO.BBMP/AD.COM/SUT/0766/20.21
ISSUED BY THE R3 RMP 2015, BBMP ACT AND THE BRUHAT
BENGALURU MAHANAGARA PALIKE BUILDING BYE LAWS, 2003
AS HIGHLY ARBITRARY AND ILLEGAL ANNEXURE-A. AND ETC.,
-3-
NC: 2023:KHC:23760
WP No. 4335 of 2023
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
R.DEVDAS J., (ORAL):
The petitioner is a complainant who brought to the notice of the respondent - BBMP the unauthorized construction said to have been made by the respondents No.5 and 6, in the neighbouring property.
2. During the course of these proceedings inspections were caused in terms of the directions issued by this Court.
3. Learned Senior Counsels appearing for the petitioner as well as the contesting respondents submit that in the latest report filed on 26.06.2023 at the hands of the Assistant Executive Engineer, Banashankari Sub- division, BBMP, it appears that there are some deviations in the construction put up by the contesting respondents. Attention of this Court is particularly drawn to the fact that the contesting respondents obtained a sanctioned plan for -4- NC: 2023:KHC:23760 WP No. 4335 of 2023 putting up basement, ground, first and second floor, but they have put up stilt, ground, first and second floor. It is also found that in the terrace portion, although approval was granted for putting up 45.16 sq. mtrs., of building, 80.04 sq. mtrs., construction is put up. Consequently, it is found that in the terrace floor there is a deviation of 77.24%.
4. Learned Senior Counsel Sri K.N.Phanindra, appearing for the petitioner pointed out from the report submitted by the Assistant Executive Engineer that deviation is also found in the set back area. It is pointed out that in the front side where the respondents were required to leave 3.82 mtrs., they have left only 2.50 mtrs., and therefore there is a deviation of 34.55%. Similarly on the right side of the building where 2.01 mtrs., were require to be left as set back, only 1.25 mtrs., are left and there is a deviation of 37.81%. In so far as the height of the building is concerned it is contended that as per the report what was permitted was 11.40 mtrs., -5- NC: 2023:KHC:23760 WP No. 4335 of 2023 however, the present building measures 14.65 mtrs., and there is a deviation of 28.51%. Insofar as the F.A.R. is concerned what was permitted as per the sanctioned plan is 1.75 and the actual is 1.94 and therefore there is a deviation 10.86%.
5. Learned Senior Counsel Sri D.R.Ravishankar appearing for the contesting respondents would draw the attention of this Court to certain documents and would submit that the petitioner has encroached on a portion of the property belonging to the contesting respondents. In that regard, it is pointed out that during the inspection a complaint was also made by the contesting respondents regarding the encroachment said to have been made by the petitioner on the property belonging to the contesting respondents. Learned Senior Counsel would therefore submit that insofar as the set back is concerned there is deviation since in terms of the actual measurement of the property belonging to the contesting respondents where East to West the property should be measuring 60 feet, it -6- NC: 2023:KHC:23760 WP No. 4335 of 2023 is now measuring 57 or 57.5 feet atleast on the front side of the property. Learned Senior Counsel also sought to make certain allegations against the petitioner, including the fact that earlier too the petitioner had set up two persons to file a suit against the contesting respondents and when the said persons failed in their attempt, the petitioner sprung into action and made a complaint to the BBMP officials. At any rate, it is submitted that since the contesting respondents do not agree with the factual finding given by the Assistant Executive Engineer, notwithstanding the fact that the measurements were taken in the presence of the parties, the contesting respondent should be permitted to approach the appellate authority i.e., the Chief Commissioner, invoking the provisions contained in the Bruhat Bengaluru Mahanagara Palike Act, 2020 (for short 'the BBMP Act').
6. Learned Senior Counsel Sri K.N.Phanindra, seeks to object to the submissions made by the learned Senior Counsel Sri D.R.Ravishankar, insofar as the -7- NC: 2023:KHC:23760 WP No. 4335 of 2023 allegations sought to be made against the petitioner. It was submitted that nowhere in the statement of objections which were filed initially, did the contesting respondents make any such allegation that the petitioner has encroached upon the portion of the property belonging to the contesting respondents. Nevertheless, it is also submitted that such allegations cannot be gone into by the officials of the BBMP.
7. Having heard the learned Senior Counsels and on perusing the petition papers, this Court is of the considered opinion that full opportunity should be made available to the contesting respondents to have their say before the appellate authority. If the contesting respondents are able to point out any mistake committed in the measurement taken by the Assistant Executive Engineer in terms of the report filed before this Court, the contesting respondents may seek appropriate direction at the hands of the Chief Commissioner before whom they are permitted to file an appeal invoking the provisions -8- NC: 2023:KHC:23760 WP No. 4335 of 2023 contained in the BBMP Act. If such allegations are made, the appellate authority is empowered to cause an inspection or the appellate authority being a fact finding authority may decide to inspect the property himself. Nevertheless, that is a decision which may be taken by the appellate authority. Insofar as the allegations said to be made by the contesting respondents regarding the encroachment of the property belonging to the petitioner, the contesting respondents are required to approach the civil court to redress their grievance. If in the meanwhile, the contesting respondents approach the competent civil court and get any interim order which may restrain the officials of the BBMP from proceeding any further, such a step can be taken by the contesting respondents.
8. At this juncture, it is brought to the notice of this court that neither the provisional order nor the confirmation order was issued by the competent authority. However, having regard to the fact this Court had directed inspection to be caused and report was submitted, when -9- NC: 2023:KHC:23760 WP No. 4335 of 2023 measurement were taken in the presence of the contesting respondents and the Court Commissioner, the concerned authority whether it is the Assistant Executive Engineer or the Assistant Director of Town planning may proceed to issue a confirmation order based on the report that was filed before this Court. As and when the confirmation order is served on the contesting respondents, the contesting respondents may proceed to file an appeal before the appellate authority. The confirmation order shall be passed as expeditiously as possible and at any rate within a period of two weeks from the date of receipt of copy of this order.
9. Needless to observe that till the confirmation order is served on the contesting respondents and till the period within which the appeal could be filed before the appellate authority, the respondents authorities herein are directed not to precipitate the matter.
- 10 -
NC: 2023:KHC:23760 WP No. 4335 of 2023
10. With the above observations, the writ petition is disposed of.
Ordered accordingly.
Sd/-
JUDGE KLY