Sri Madan Lal J.Hinduja vs The Commissioner on 21 February, 2018

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Karnataka High Court

Sri Madan Lal J.Hinduja vs The Commissioner on 21 February, 2018

1. The petitioner namely, Mr.Madan Lal J.Hinduja, and other two members of the same family representing Date of Order 21-02-2018 W.P.No.14124/2017 Sri. Madan Lal J. Hinduja & Ors. Vs. The Commissioner, BBMP & Ors.

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their partnership firm M/s.Gokuldas Exports, which was later on converted into a Private Limited company under the name and style of M/s.Gokuldas Exports Pvt.

Ltd., and who are tenant in the Building in question have filed this writ petition in this Court on 28.03.2017, aggrieved by the order passed by the KAT on 17.12.2016 in Appeal No.444/2005 filed by the present petitioners along with the owner of the Building M/s.Shariff & Bhatia, Proforma Respondent No.3 in the present writ petition.

2. The petitioners have come to this Court and in the earlier round of litigation before the KAT also and their case was that they are the lessees and tenants of the mazanine floor of the said Building known as 'S & B Towers', situated at No.88, M.G.Road, Bangalore.

The impugned proceedings under Section 321 of the KMC Act, 1976, were undertaken essentially against the owner of the said building M/s.Shariff & Bhatia and Date of Order 21-02-2018 W.P.No.14124/2017 Sri. Madan Lal J. Hinduja & Ors. Vs. The Commissioner, BBMP & Ors.

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the tenants were also put to Notice under Section 321(1) of the Act vide Annexure-K dated 03.03.2005, which proceedings were undertaken in pursuance of the earlier directions of this Court passed in W.P.Nos.5036- 5038/1991.

3. The deviation in the said Building were pointed out by the concerned Asst.Executive Engineer of Shanthinagar Division, BBMP, Bangalore, on the ground floor on the set back area, the deviations on the right side about 28.88%, Eastern side 11.27% and in Southern side to the extent of 10% were pointed out in the said notice. On the First Floor to Fifth floor construction, the BBMP authorities found that the roof projection in upper floors is 3 ft but actual projection is 5 ft on Eastern side and Western side and 6th floor construction was totally unauthorized.

4. Thus, the owner / Builder having deviated from the sanction plan and having violated the Building Bye-

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laws was put to the Notice under Section 321(1) of the Act. The other Notice including the present petitioners of Hinduja Family apparently were only tenants and lessees of the said Building. After taking the objections of the notice on record, the concerned BBMP authority -

Asst.Exeuctive Engineer passed the Confirmation order under Section 321(3) of the Act vide Annexure-M dated 14.03.2005. The relevant operative portion of the Confirmation order is quoted below for ready reference:-

"In view of the facts and details explained above, I am satisfied that the Owner Builder of Plot No.88, M.G. Road, 51, Church Street, Bangalore in Ward No.76 is constructed the Building, deviating from the Sanctioned Plan by The Deputy Director (Planning Cells) vide L.P.No.1524/79-80 dated 12-09-1979, which requires to be brought in conformity with the building byelaws and rules by removing the deviated portions and accordingly I, G.S. Jagadish, Assistant Executive Engineer, Shanthi Nagar Sub Division, do hereby confirm the Provisional Order No.AEE/SN/PO/17/04-05 Dated 03-03-2005 and direct the Owner/Builder Date of Order 21-02-2018 W.P.No.14124/2017 Sri. Madan Lal J. Hinduja & Ors. Vs. The Commissioner, BBMP & Ors.

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to remove all the deviations within 3 days of receipt of this Conformity Order falling which further action as per law will proceed.

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Asst. Executive Engineer Shanthi Nagar Sub Division Bangalore Mahanagara Palike".

5. The matter was taken up before the KAT by all the lessees concerned and the owner of the Building and the learned Tribunal confirmed the orders passed under Section 321(3) of the Act on 17.12.2016 with the following observations:-

"10. Issue No.1 & 2:- In Appeal No.371/2005 Shariff & Bhatia Associates, the appellant states that, the Appellant concern is a partnership concern, the same is registered under the Partnership Act. The appellant constructed a building in the name & style of S & B Commercial complex bearing Property No.88 & 13-A, Church Street, M.G. Road, Bangalore, bounded on the East by: Oni and private property, West by:

Private property, North by: M.G. Road, South by: Church Street. The said Commercial complex was constructed by obtaining the approved Plan Date of Order 21-02-2018 W.P.No.14124/2017 Sri. Madan Lal J. Hinduja & Ors. Vs. The Commissioner, BBMP & Ors.

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and Licence in L.P. No.1524/1979-80 issued during the year 1979 by the Commissioner & Assistant Executive Engineer, BBMP, Shanthi Nagar Sub Division, Bangalore. In order to use the Basement for commercial purpose the appellant made a representation dated 6-8-1983 for modified Plan, accordingly the BBMP granted the modified Plan. The said Modified Plan was obtained before commencement of Building Bye Laws 1983. The copy of the Modified Plan is produced. While issuing the Modified Plan, the Superintendent Engineer issued a letter for having sanctioned the Modified Plan, the same produced. As per the approved Modified Plan the construction of building has been completed. There is no violation of construction of the building. In the mean time, some tenants have Writ Petitions in W.P.No.5036-38/1991 before the Hon'ble High Court of Karnataka. The Hon'ble High Court disposed of the said writ petitions on 24-11-1998. During pendency of the said writ petitions, the Hon'ble High Court of Karnataka directed the Assistant Executive Engineer to inspect the building and submit the report with regard to violation of building byelaws. Accordingly the Engineer inspected the spot and submitted his report before the Hon'ble High Date of Order 21-02-2018 W.P.No.14124/2017 Sri. Madan Lal J. Hinduja & Ors. Vs. The Commissioner, BBMP & Ors.

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Court of Karnataka. In the said report, he stated that there is violation in construction of the building, the copy of the order passed in the said writ petition is produced. After disposal of the above Writ petitions, the 2nd Respondent (AEE) passed the Provisional order on 3-3-2005 Under Section 321(1) & (2) of K.M.C. Act without affording an opportunity to the appellant and on 14-3-2005 hurriedly passed the Final order Under Section 321(3) of K.M.C. Act. Prior to passing of the Provisional order, the Respondents have not inspected the spot and therefore the Final order passed by the Respondents Under Section 321(3) of K.M.C. Act is not maintainable etc.,

11. On perusal of the records of the Respondents, the appellants in the above appeals are the representatives, Tenants, Lessees, the original owner is one Mr. Pradeep Kumar, who secured the sanctioned Plan and licence from the Respondents on 28-10-1979, this Tribunal has no jurisdiction with regard to the title of the property.

In Appeal No.371/2005, the appellant stated that they have obtained that Modified Plan and produced the same, but the same was not attested by the BBMP. Further the appellants stated that during the year 1983 they have obtained the Modified Plan from the Respondents.

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The appellant in Appeal No.371/2005 on number of times stated that they obtained the Modified plan. But on perusal of the records, the copy of the Modified plan obtained on 6-8-1983 and the approved Plan obtained during 1979-80 are produced. On 12-1-2007 this Tribunal dismissed all the above said four appeals i.e. the Appeal No.371/2005 is dismissed, Appeal No.340, 444 & 523/2005 were dismissed as not maintainable. As against the said order, the above appellants have filed number of Writ petitions separately before the Hon'ble High Court of Karnataka. But the Writ petition in W.P.No.1323/2007 filed by the appellant in Appeal No.523/2005, accordingly W.P.No.1168/2007 filed by the appellant in Appeal No.444/2005, W.P.No.1385/2007 filed by the appellant in Appeal No.340/2005. W.P.No.19410/2007 filed by the Appellant in Appeal No.371/2005, W.P.No.1323/2007 was disposed on 15-2-2010 with a direction to this Hon'ble Karnataka Appellate Tribunal to re- consider the appeals by affording sufficient opportunity to the appellants and to pass orders. Similarly the other above said Writ petitions were disposed on 27-5-2010 with a direction to K.A.T. for disposal as per the orders passed in Date of Order 21-02-2018 W.P.No.14124/2017 Sri. Madan Lal J. Hinduja & Ors. Vs. The Commissioner, BBMP & Ors.

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W.P.No.1323/2007. As per the direction of the Hon'ble High Court of Karnataka, the above appeals are taken for re-consideration. Heard the arguments on behalf of the appellants so also the Written Arguments filed by both the parties.

12. In Appeal No.371/2005 the appellant concern during the year 1982 filed a Writ petition in W.P.No.23129/1982 secured the occupation certificate. In W.P.No.13487/1982 the Writ petitioner sought for setting aside the order passed Under Section 321 of K.M.C. Act, accordingly the said order as set aside. In Appeal No.444/2005 the 4th Respondent M/s. Wipro Information Technologies Limited and others filed Writ petitions No.5036-5038/91 before the Hon'ble High Court of Karnataka. In the said Writ petitions, the Hon'ble High Court appointed the Assistant Executive Engineeer, BBMP as Court Commissioner to inspect the spot in the presence of both the parties and ascertain the fact that whether the constructed building is in accordance with the sanctioned plan or in violation of the sanctioned plan and what extent the deviation and to submit the report. Accordingly the Assistant Executive Engineer visited the sport inspected the building and submitted his report. On the report of the Date of Order 21-02-2018 W.P.No.14124/2017 Sri. Madan Lal J. Hinduja & Ors. Vs. The Commissioner, BBMP & Ors.

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Assistant Executive Engineer, the Hon'ble High Court of Karnataka observed as detailed below:

13. It is observed that in the basement floor measuring 20x80 feet meant for parking of Cars is constructed in accordance with the approved plan, the said premises has been converted for commercial purpose and let out the same to M/s Jenlet Limited concern. Without obtaining the permission from the BBMP installed two Generator, which are 500 KV and 250 KVA capacity respectively. On the Western portion Set back has been encroached and let out the same on rentals. As per the approved plan the place reserved for parking of Scooters and Cycles has been let out to run STD and Tea shops on rental basis, however on the Eastern side left space for parking the Cycles etc., Further the Hon'ble High Court of Karnataka in the said writ petitions directed the first Respondent BBMP to take action Under Section 320 of K.M.C. Act. Accordingly the BBMP issued the Preliminary and Final Order against the Appellant Under Section 321(1)(2) & (3) of the K.M.C. Act. So also in the Final order the objections of the representatives of the Appellants concern are considered by the Respondent-BBMP. The representatives of the Appellants concern have not stated any thing in Date of Order 21-02-2018 W.P.No.14124/2017 Sri. Madan Lal J. Hinduja & Ors. Vs. The Commissioner, BBMP & Ors.

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W.P.Nos.5036-5038/1991 with regard to obtaining of the Modified Plan dated 6-8-1983. It reveals that as per the direction of the Hon'ble High Court of Karnataka the BBMP authorities have taken action against the appellant under the above said Act. In the above said Writ petitions, the Hon'ble Court observed that the Assistant Executive Engineer, BBMP appointed as Court Commissioner, visited the spot inspected building and submitted his report before the Hon'ble Court as per the said report, the appellants have constructed the building in violation of the original approved plan and the Modified Plan, but he original owner is not coming in the picture. But only the Tenants, Lessees are in the picture. Accordingly the BBMP passed the Preliminary order and Final order against the Tenants, Lessees. Therefore the order of the Respondent is in accordance with law, hence the interference of this Hon'ble Tribunal not necessary. Hence the above appeals are not maintainable, the appellants have miserably failed to prove the maintainability of the above appeals. Therefore the above appeals are not maintainable. Thus I answer the point Nos.1 & 2 in Negative and accordingly they are answered.

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14. Issue No.3, on the above said reasons, hence proceed to pass following order:

ORDER The Appeals No.371/05, 340/05, 444/05 and 523/05 filed by the Appellants are dismissed.

Directed the office to issue copy of this Judgment to both the parties within 30 days as per Chapter-9, Rule-53, of the Karnataka Appellate Tribunal Regulations.

Keep the original Judgment in Appeal No.371/2005 and keep it's copy in Appeals No.340/05, 444/05 and 523/05.

Return the records along with the copy of the Judgment.

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       (KAPIL MOHAN)                      (M. KANUMAIAH)
         President                      Member Dist. Judge"

Aggrieved by the said order of the learned KAT dated 17.12.2016, the present writ petition has been filed by the petitioners-lessees viz., Hinduja family in this Court on 28.03.2017.

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6. The learned counsel for the petitioners Mr.Somashekar has urged before the Court that even though the petitioners are only the lessees of the portion of the Building in question of the mazanine floor, but on the allegations against the Builder and impugned orders passed in the matter, even the present petitioners-

lessees are likely to be adversely affected though they have neither encroached any area of the parking slot of the said Building nor they are the owner of the said Building.

7. Having heard the learned counsel for the petitioners, this Court is of the opinion that the present writ petition filed by the lessees does not disclose any cause of action to the petitioners in the matter arising to the said lessees.

8. Firstly, admittedly, the present petitioners-

lessees are not the owners of the Building and therefore, the findings of deviated construction raised by the Date of Order 21-02-2018 W.P.No.14124/2017 Sri. Madan Lal J. Hinduja & Ors. Vs. The Commissioner, BBMP & Ors.

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Builder should not bother the lessees or the tenants.

Secondly and equally, if the lessees and tenants have occupied the illegally constructed portion or the parking area of the said Building, they cannot seek any injunction or protection from the Court of law. It is the Builder or the owner, who may be affected by such impugned orders passed against him with a threat of demolition of the deviated construction under Section 321(3) of the Act which has now been upheld by the learned Tribunal and the same does not require any interference by this Court at all, because the illegal construction and illegal occupation of the parking spaces by the Builder himself or the tenants on his behalf cannot be permitted under any circumstances.

9. If the concerned parties have committed the illegality and have encroached upon the parking area or other illegally constructed deviated construction, they must bear the consequence of orders passed by the Date of Order 21-02-2018 W.P.No.14124/2017 Sri. Madan Lal J. Hinduja & Ors. Vs. The Commissioner, BBMP & Ors.

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concerned authorities of BBMP, as upheld by the learned Tribunal and such illegalities cannot be allowed to be perpetuated by seeking protection of this Court in the extraordinary jurisdiction under Article 226 of the Constitution of India.

10. This Court does not find any specific finding against the petitioners-lessees in particular, threatening their dispossession from the duly leased parties to them. The question of fact about their encroachment of parking space etc., cannot be determined here. Such questions as decided by the BBMP authorities and Tribunal are findings of facts binding on this Court.

Therefore, apparently, there is neither any locus-standi nor any cause of action available to the petitioners-

lessees to invoke the process of the Court in the matter.

However, it is made clear as aforesaid that if the tenants have also occupied the illegal parking spaces and the deviated portions of the construction, they must also Date of Order 21-02-2018 W.P.No.14124/2017 Sri. Madan Lal J. Hinduja & Ors. Vs. The Commissioner, BBMP & Ors.

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bear the brunt of the orders of demolition passed by the authorities of BBMP and rightly upheld by the learned Tribunal and this Court would not interfere with the findings of facts arrived at by the learned KAT and the authorities of the BBMP in this regard. There is no justification for doing so.

11. Consequently, the present writ petition found to be devoid of merits and the same is liable to be dismissed and accordingly, it is dismissed. No costs.

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JUDGE Srl.

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Karnataka High Court