Karnataka High Court
Smt. B. S. Shivamma vs Bruhath Bengaluru Mahanagara Palike on 28 May, 2024
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2024:KHC:17775
WP No. 5906 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 5906 OF 2024 (LB-BMP)
BETWEEN:
1. SMT. B. S. SHIVAMMA
AGED ABOUT 68 YEARS,
W/O. SREE PRAKASH,
RESIDING AT NO. 13,
RAMAKRISHNAPURAM,
SUBEDAR CHATRAM ROAD,
BANGALORE-560 009.
2. SMT. RAMYASHREE. B. S.
AGED ABOUT 41 YEARS,
W/O. ASSHWIN,
RESIDING AT NO.1,
1ST CROSS, 3RD BLOCK,
KUMARA PARK WEST,
BANGALORE-560 020.
...PETITIONERS
Digitally
signed by (BY SRI. NITIN RAMESH.,ADVOCATE)
ANAND N
Location: AND:
HIGH
COURT OF
KARNATAKA
1. BRUHATH BENGALURU MAHANAGARA PALIKE
REPRESENTED BY ITS
CHIEF COMMISSIONER,
HUDSON CIRCLE,
BANGALORE-560 002.
2. SRI. H. D. MOHAN
S/O. H. DHONDUSA,
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WP No. 5906 of 2024
AGED ABOUT 58 YEARS,
RESIDING AT NO. 45,
3RD CROSS, CHOLURPALYA,
MAGADI ROAD,
BENGALURU-560 023.
3. SMT. PRAMILA
W/O. SRI. V. PRAKASH,
AGED ABOUT 54 YEARS,
RESIDING AT NO. 156,
1ST G CROSS,
SHARADA COLONY,
BASAVESHWARANAGARA,
BENGALURU-560 079.
4. SRI. B. A. RAVI
S/O. B. S. ANJANEYALU,
AGED ABOUT 49 YEARS,
RESIDING AT NO. 9,
4TH CROSS, R.K. PURAM,
BANGALORE-560 009.
...RESPONDENTS
(BY SRI. MALLIKARJUN REDDY K S.,ADVOCATE FOR R1;
SRI. P. USMAN, ADVOCATE FOR R2;
SRI. R.B. SADASIVAPPA, ADVOCATE FOR R3;
SRI. KITTAPPA K.R., ADVOCATE FOR R4)
THIS WP IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO
DIRECTING THE R1 TO DISMANTLE / DEMOLISH THE
SCHEDULE PROPERTY AS PER NOTICE NO. DATED
18/10/2023 IN NO. ANNEXURE -M.
THIS PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
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WP No. 5906 of 2024
ORDER
The petitioners and second to fourth respondents are the owners of certain specific built-up portions in the property that measures 18 x 33 feet and is located within an 'Intensely Developed Area'. The petitioners also assert corresponding undivided share in the sital area. These parties were before this Court in the writ petition in W.P. No.51795/2019 because of certain intended action by the first respondent alleging that the building in the property is in a dilapidated condition and must be brought down. When this Court referred them to mediation, they have entered into an agreement, and the writ petition in W.P. No.51795/2019 stands disposed of by this Court's order dated 02.02.2022. It would suffice for the purposes of the present petition to observe that the petitioners have taken upon themselves, with the consent of the second to fourth respondents, to construct the new building incurring costs subject to the detailed terms of the agreement.
2. The petitioners have filed this petition for directions to the first respondent to demolish the building in terms of the Notice dated 18.10.2023 because of a -4- NC: 2024:KHC:17775 WP No. 5906 of 2024 standoff between the petitioners and the second to fourth respondents as a consequence of perceived difficulties in obtaining necessary approvals and license for construction of a building as agreed without jeopardizing their respective rights. The learned counsels for the petitioners and the second to fourth respondents, during the course of hearing on the previous occasions, impressed upon this Court that some of the difficulties would be because of the requirements of setback and car parking in the Ground Floor of the proposed new Building.
3. The concerned Officer from the Bruhat Bengaluru Mahanagara Palike [BBMP], when called upon by this Court, has filed a Status Report stating, amongst others, the following:
[a] A fresh Plan and license can be issued provided all the Kathedars jointly submit the necessary application and if the existing building in the property is demolished. [b] The parties will have to ensure that setback is as per the Table mentioned in this Report. -5-
NC: 2024:KHC:17775 WP No. 5906 of 2024 [c] The entire ground floor has to be reserved for parking as per the Rules.
4. Further, with the learned counsels taking exception with the Report also stating that the entire Ground Floor must be reserved for car parking and there must be setback as aforesaid, this Court has called upon the learned counsel for the BBMP to place on record the parameters that would be insisted upon for granting approval of land and issuance of license given the dimensions of the property. This Court has also called upon the jurisdictional Assistant Director of Town Planning [West] [ADTP], BBMP to be present to issue necessary clarification because of certain circumstances as recorded by this Court, and the jurisdictional ADTP has later clarified thus in person:
"When queried on whether the requirement for parking area within the subject property is a must according the BBMP Building Bye-laws 2003 because the measures only 594 sq. feet and is within densely developed area, Sri Narayanaswamy submits that, in these circumstances, at the most, the parties may have to provide for a -6- NC: 2024:KHC:17775 WP No. 5906 of 2024 single car parking and a staircase in the ground floor, and but then if the parties are not particular, they may not even earmark any area for car parking."
5. Sri Nitin Ramesh, Sri Mallikarjun Reddy K S, Sri P Usman, Sri R B Sadasivappa, Sri Kittappa K R, the learned counsels for the petitioner and first to fourth respondents respectively, are heard in the light of these circumstances and clarification. The learned counsels submit that their entire effort from the very beginning has been to impress upon the first respondent that there cannot be any insistence on Car Parking given the provisions of Bye-law Rule-16[c] of the BBMP Bye - laws 2003 [Bye-laws] and that the property is located within 'Intensely Developed Area' and the total built up floor space cannot be more than 100 sq. meters. This Court must conclude that it emerges from the statement before this Court by the jurisdictional ADTP and Rule-16[c] of the BBMP Bye-laws that there is consensus on the requirement of Car Parking in the building. The first respondent cannot insist on Car Parking in the ground floor.
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6. As regards the setback, this Court must refer to the provisions of Bye-law No.9.2 of the BBMP Bye-laws and Table-4 as also to the fact that even according to the Status Report filed before this Court, the subject property measures only 18 feet in width which is below six meters. In that event, because of the stipulation in Table-4, the setback of only one meter would be required in the front. These indisputable facts and the provisions of the Bye - laws clear the confusion about the setbacks and the first respondent cannot insist on the setbacks as mentioned in the Status Report or otherwise.
7. This Court must opine, with the resolution of the afore, what remains for consideration is whether all the petitioners and the second to fourth respondents must join in making an application and should they demolish the standing structure. In typical circumstances, the first respondent could have been justified in insisting that all the Kathedars [the private parties to the proceedings] must join in filing application. However, in the peculiarities of this case where the petitioners and the second to fourth respondents own -8- NC: 2024:KHC:17775 WP No. 5906 of 2024 defined built up area with corresponding undivided interest in the sital area and accepting that the construction must be brought down given its age and condition with the onus on the petitioners to take lead in the construction, this Court is of the considered opinion, especially with the parties having signed an agreement which is accepted by this Court in the earlier proceedings in W.P. No.51795/2019, that the first respondent cannot insist upon either a joint application or demolition of the building.
8. Further, this Court must observe that if there is insistence on demolition of the building before an application is filed notwithstanding the peculiar circumstances, it creates an inevitable stalemate as is now seen with the parties being before this Court in the present proceedings, and such stalemate cannot be a solution in law. As such, this Court is persuaded to opine that in terms of the agreement, which is accepted by this Court while disposing of the earlier writ petition in W.P. No.51795/2019, that the petitioners must be at liberty to submit an application for issuance of a Building Plan and -9- NC: 2024:KHC:17775 WP No. 5906 of 2024 license with the 1 [one] meter setback in the front and without insistence on the car parking in the ground floor, and that with the petitioners complying with all the other requirements including the fee that is payable in terms of the BBMP Bye-laws, the first respondent must consider such submissions expeditiously. Hence the following:
ORDER [a] The petition stands disposed of reserving liberty to the petitioners, acting in consonance with the terms of the agreement accepted by this Court in the writ petition in W.P. No.51795/2019, to file Building Plan and license with one [1] meter setback in the front and without insistence on the car parking in the ground floor for approval. [b] The petitioners will be at liberty to make such submissions within a period of two weeks from today and they shall also enclose a certified copy of this order. [c] The first respondent shall consider such submission without insisting upon the
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NC: 2024:KHC:17775 WP No. 5906 of 2024 petitioners/second to fourth respondents on demolishing the standing structure as a prior condition, but the approval shall be granted with the stipulation that no construction shall be commenced according to the plan sanctioned and license issued unless the old construction is demolished.
SD/-
JUDGE AN/-