Karnataka High Court
Raja Datta Kumar vs State Of Karnataka on 25 July, 2013
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 25TH DAY OF JULY, 2013
BEFORE
THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY
WRIT PETITION NOS.48806-07/2012 (LB)
C/W
WRIT PETITION NOs.774-75/2013 (LB)
IN W.P.NOs. 48806-07/2012 (LB)
BETWEEN
1. Raja Datta Kumar
S/o Raja Jayashanakar
Aged about 42 years
Residing at No.G-1
Meenakshi Manor
No.14/2, 10th 'B' Main
5th Cross, I Block
Jayanagar
Bangalore-560 011.
2. Raja Suchindra
S/o Raja Jayashanakar
Aged about 45 years
Residing at No.3, 36th Cross
VIII Block, Jayanagar
Bangalore-560 082. ... Petitioners
(By Sri Ashok Haranahalli, Sr. Counsel
appearing for G.Manivannan, Adv.,)
2
AND
1. State of Karnataka
Department of Urban Development
Multi Storied Building
Dr.Ambedkar Veedhi
Bangalore-560 001
Represented by its
Secretary
2. Bangalore Mysore
Infrastructure Corridor
Area Planning Authority
Multi Storied Building
Dr.Ambedkar Veedhi
Bangalore-560 001
Represented by its
Secretary
3. Paulraj
S/o Jojappa
Aged about 28 years
Residing at Mylasandra
Village, Begur Hobli
Bangalore South Taluk
Bangalore Urban District ... Respondents
(By Smt.Manjula R.Kammadalli, HCGP for R1,
Sri Y.Narayana Swamy, Adv., for R2,
Sri K.Shrihari, Adv., for
M/s Lex Justicia for R3)
These Writ Petitions are filed under Articles 226
and 227 of the Constitution of India, praying to call for
the records and quash the order dated 4.10.2012
passed by the respondent No.2 vide Annexure-Q.
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IN W.P.NOs. 774-75/2013:
BETWEEN
1. Smt. Agneshamma
W/o Jogappa
Aged about 69 years
R/at Mylasandra Village
Bangalore South Taluk
Bangalore - 560 008
2. Paulraj
S/o Jogappa
Aged about 28 years
R/at Mylasandra Village
Begur Hobli
Bangalore South Taluk
Bangalore Urban District ... Petitioners
(By Sri.K. Shrihari, Adv. for
M/s. Lex Justica, Advs.)
AND
1. State of Karnataka
By its Secretary
Town and Country Planning
Vidhana Soudha
Dr.Ambedkar Veedhi
Bangalore - 560 001
2. Deputy Commissioner
Bangalore Urban District
Office of Deputy Commissioner
K.R.Road, Bangalore - 560 005
3. The Commissioner
Bruhath Bangalore Mahanagara Palike
Corporation Building, S.R.Circle
Bangalore - 560 001
4
3. Addl. Director General of Police
Bangalore Metro Police Task Force
BBMP Main Office
S.R.Circle, Bangalore - 560 001
4. Additional Secretary & Chairman
Bangalore Mysore Infrastructure
Corridor Area Development Authority
Room No.306, Vidhana Soudha
Dr.Ambedkar Veedhi
Bangalore - 560 001
5. Raja Datta Kumar
S/o Jayashankar
R/at G-1, House No.14/2
Meenakshi Neasar, 5th Cross
10th B Main, Jayanagar 1st Block
Bangalore - 560 011
... Respondents
(By Smt. Manjula R.Kammadali, HCGP for R1,R2 & R4,
Sri. Ashwin S. Halday, Adv., for R3,
Sri Y.Narayana Swamy, Adv., for R5
Sri. Ashok Harnahalli, Sr. Counsel,
For G.Manivannan, Adv. for R6)
These writ petitions are filed under Articles 226
and 227 of the Constitution of India, praying to direct
the R1 to R5 to take action in accordance with law by
demolishing the building constructed in land bearing
Sy.No.20/7 of Kammanahalli Village, Begur Hobli, in
Bangalore South Taluk and issue such other writ.
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These writ petitions coming on for Preliminary
Hearing in 'B' Group this day, the court made the
following:-
ORDER
Petitioner in W.P. No. 48806-07/2012 challenges the suspension order vide Annexure-Q dated 04.10.2012 discharging commencement certificate dated 17.09.2009 by invoking Section 76(O) of the Town and Country Planning Act.
2. The connected writ petition is filed by the objector on whose instance, the proceedings was ended in issuing suspension order. The objector has filed writ petition seeking writ of mandamus directing the authorities to demolish the structure put up by the writ petitioner in the first petition.
3. The petitioner in the first writ petition states that he has purchased the land in the year 2003 bearing Sy. No. 20/P2 of Kammanahalli Village, Begur 6 Hobli and got it converted to non-agricultural purpose in the year 2005.
4. Petitioner in the second writ petition who claims that he is the vendor of land bearing Sy. No. 20/7 measuring 2 acres alleging that the petitioner in the first petition herein has committed violation in putting up construction.
5. The learned counsel for the petitioner in the first writ petition submits that after obtaining conversion certificate, pursuant to the commencement certificate, the construction has been put up and it is ready for occupation.
6. In the interregnum the petitioner in the second writ petition filed the suit and did not get the interim order filed objections before the competent authority. Such objections taken into consideration for the purpose of Section 76(o) of the Act. The notice was issued to the petitioner in the first writ petition on 7 04.06.2012 directing the petitioner as to why the construction is put up in violation of the regulations for which the petitioner made a reply/representation on 06.06.2012 despite of the fact that he has furnished complete/building details, plan etc., and without considering the reasons assigned in the reply the respondent has passed an order of discharge by invoking Section 76 (O) of the Act. Hence the impugned order is ultra vires to the provisions of the Act. Though the reply has been filed and all the documents are provided along with the reply the respondent has committed an error in not looking into the materials placed before it. Hence suspension of commencement certificate issued in 2006 and 2009 is in violation, arbitrary, excessive exercise of power. Accordingly he submitted to set aside the impugned order at Annexure- Q.
7. The respondent counsel for the competent authority files statement of objections and produced 8 Annexure-R1 survey sketch. He submits that the contention of the petitioner that the impugned order is passed without affording an opportunity is not correct. In fact the show cause notice was issued pursuant to which he made reply. After issuing due notice, inspection was conducted on 14.06.2012 and the petitioner is also present along with Tahsildar and other officers concerned and it is referred in the impugned order that the sketch produced for obtaining commencement certificate and the sketch which was produced before the Deputy Commissioner for issuance of commencement certificate are different and petitioner is not the owner in respect of Sy. No. 20/7. Under these circumstances he justifies the impugned order herein.
8. The petitioner in the connected second writ petition who is also respondent No.3 in the first writ petition submits that the contention of the petitioner that reply has not been considered is totally wrong and is an erroneous submission. He submits that before 9 passing the impugned order of suspension, the petitioner was given fullest opportunity and to substantiate the same, he has produced the records of entire proceedings along with the rejoinder filed in the writ petition. He has read the entire record sheet maintained for the purpose of passing such orders and submitted that commencement certificates produced for obtaining the commencement certificate and what was produced in reply to show cause notice are different. The conversion certificate is also obtained for different survey numbers. Under these circumstances, the contention that an opportunity was not provided and reply has not been considered is an untrue fact and the petition has to be dismissed on this ground.
9. The learned Government Pleader supports the action of the contesting respondents.
10. I have heard respective counsel for the parties in both the petitions.
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11. It is submitted that there is a dispute between the parties in civil suit bearing O.S. No. 312/2011 on the file of the II Additional Senior Civil Judge, Bangalore Rural at Bangalore and the said suit has been filed by the petitioner in the second writ petition against the petitioner in the first petition seeking declaration and permanent injunction. The said suit was filed in respect of Sy. No. 20/7 measuring two acres and it is the case of the petitioner in the second petition and the 4th respondent in the first petition that the commencement certificate in respect of Sy.No.20/7, in respect of which dispute is yet to be decided by the civil court, and rightly both the parties are participating the said suit. In the instant case what is challenged by the petitioner is the error said to have been committed by the competent authority in issuing suspension order by virtue of the power under Section 76(O) which has been invoked by the competent 11 authority. What is disputed is the impugned order passed by the respondent authority without considering the detailed reply made by the petitioner in the first petition pursuant to the show cause notice dated 14.10.2012.
12. It is seen from the impugned order, it is not elaborately discussed as to whether the reply submitted by the petitioner has been considered or not. In order to find out whether reply has been considered, I have gone through the order, maintained to that effect by the respondent authority which is produced by the fourth respondent who is the petitioner in the second matter. The order sheet dated 10.08.2012 maintained by the official respondents which gives the details that they have duly considered the reply submitted by the petitioner in the first petition. The reasons assigned therein discloses that the spot inspection was conducted in which the petitioner also participated along with his counsels and the Tahsildar, South Taluk 12 and surveyors were also present and the land was measured in the presence of both the parties and the petitioner was directed to produce conversion certificate in respect of Sy. Nos. 20/P2 and 20/9 for which the petitioner has taken seven days time to produce the conversion certificate. On completion of seven days, he appeared before the respondent authority on 24.06.2012 and stated that the said Deputy Commissioner Bangalore who granted the conversion certificate on 01.09.2005 in BAA/SLN/SR/(S)/510/2004-05 for which official sketch has been furnished as a result he could not be able to produce the same. That itself shows that the respondents have considered the reply statement and also the submissions made on behalf of the petitioner by learned advocate. The authorities have examined both the Sy. Nos. 20/9 and also 20/P2. The records further disclose that the Commissioner of the respective Corporation was asked as to whether the occupancy 13 certificate was issued to the occupants. Since it is found that some of the occupants are residing for which he relied on the letter dated 12.07.2012 stating that he has not issued any license or any occupancy certificate. These particulars discloses that before issuing order of suspension under Section 76(O) of the Act, a detailed enquiry has been made and petitioner's reply has been considered, his counsel was also heard in the matter. Under these circumstances, I do not find any infirmities in the order passed by the respondent.
13. Notwithstanding the same, it is the submission made by the learned counsels of all the respective parties that the suit is filed in which the parties are participating, they have to wait till the disposal of the suit.
14. From the facts and circumstances of the case produced along with the rejoinder, construction is almost completed and several persons are residing. 14 Under these circumstances it is right to direct the civil judge to expedite to consider the matter and pass appropriate orders in accordance with law within a period of six months from the date of receipt of certified copy of this order subject to a condition that both the parties shall cooperate with the proceedings.
These petitions are disposed of accordingly.
Sd/-
JUDGE Bsv