Karnataka High Court
Dr. Thyaga Raju vs State Of Karnataka on 1 February, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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WP No. 611 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 611 OF 2023 (LB-BMP)
BETWEEN:
DR. THYAGA RAJU
S/O LATE MUNISWAMAPPA
AGED ABOUT 70 YEARS
R/A NO.279, 10TH CROSS
3RD MAIN, I BLOCK
B E L LAYOUT
VIDYARANYAPURA
BENGALURU-560097.
...PETITIONER
(BY SRI H.R.RAGHU, ADV. FOR
SRI PRAKASH TIMMANNA HEBBAR, ADV.)
AND:
1. STATE OF KARNATAKA
REP. BY PRINCIPAL SECRETARY
BBMP DEPARTMENT
Digitally signed
ROOM NO.1100
by
MARIGANGAIAH
GATE NO.2, M S BUILDING
PREMAKUMARI DR. B R AMBEDKAR VEEDHI
Location: High
Court of BENGALURU-560001.
Karnataka
2. THE COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE
CORPORATION OFFICES
HUDSON CIRCLE, N R ROAD
BENGALURU-560002.
3. THE ZONAL COMMISSIONER
NO.582, 4TH CROSS ROAD
BEL LAYOUT, 2ND BLOCK
VIDYARANYAPURA, BENGALURU
KARNATAKA-560097.
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WP No. 611 of 2023
4. SHRI M O GEEVARUGHESE
S/O LATE P V OOMMEN
AGED ABOUT 68 YEARS
5. SMT. ANNAM VARGHESE
W/O M O GEEVARUGHESE
AGED ABOUT 58 YEARS
6. SHRI SOLOMON VARGHESE
S/O M O GEEVARUGHESE
AGED ABOUT 35 YEARS
RESPONDENTS 4 TO 6 ARE ALL
R/AT NO.32, BETHAL HOUSE
NEAR GANGAMMA TEMPLE
GANGAMMA CIRCLE
BENGALURU-560013.
...RESPONDENTS
(BY SRI PRADEEP PATIL, ADV. FOR
SRI K.B.MONESH KUMAR, ADV. FOR R2 & R3
SRI K.R.NITYANANDA, AGA FOR R1
SRI SAMPATH ANAND SHETTY, ADV. FOR R4 TO R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE R2
COMMISSIONER TO CONSIDER THE REPRESENTATION FILED BY THE
PETITIONER AS PER ANNEXURE-A DATED 23.08.2022 AND TO PASS
APPROPRIATE ORDERS AGAINST ILLEGAL CONSTRUCTION ALREADY
PUT UP BY THE R4 TO 6 AND ALSO TO STOP THE ILLEGAL
CONSTRUCTION BEING PUT UP IN VIOLATION OF THE SANCTION
PLAN IN ACCORDANCE WITH THE PROVISIONS OF THE BRUHAT
BENGALURU MAHANAGARA PALIKE (BBMP) ACT, 2020 AND TO
NOTIFY THE PETITIONER ABOUT THE ACTION TAKEN BY THE
COMMISSIONER-BBMP.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 611 of 2023
ORDER
Heard Sri H.R. Raghu, learned counsel for Sri Prakash Timmanna, learned counsel for the petitioner, Sri K.R. Nityananda, learned Additional Government Advocate for the 1st respondent, Sri Pradeep Patil, learned counsel for Sri K.B. Monesh Kumar, learned counsel for respondents 2 and 3, Sri Sampath Anand Shetty, learned counsel for respondents 4 to 6. Perused the writ petition papers.
2. The inspection report dated 31.01.2023 filed along with memo dated 01.02.2023 is taken on record.
3. The petitioner is before this Court under Article 226 of the Constitution of India praying for a direction to respondents 2 and 3 to consider representation (Annexure-A) dated 23.08.2022 and take action against respondents 4 to 6 for unauthorized construction in violation of sanction plan in respect of the scheduled property.
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4. Learned counsel for the petitioner would submit that petitioner is the immediate neighbour of respondents 4 to 6 and due to their illegal construction of the building, the petitioner is put to hardship, and the illegal, unauthorized construction in deviation of sanctioned plan, denies the right of the petitioner to enjoy his property.
5. Per contra, Sri Sampath Anand Shetty, learned counsel for respondents 4 to 6 submits that there is no deviation and the building is constructed in accordance with the sanction plan and building bye-laws. However, he submits on going through the report of the Assistant Director of Town Planning, Yelahanka Zone, BBMP Byatarayanapura, Amruthahalli, that there is no set back deviation on the side of the petitioner's building. Sri Sampath Anand Shetty, learned counsel submits that in the representation submitted by the petitioner, the petitioner has not pointed out the set back violation and how it affects his right to enjoy the property. In that circumstances, he prays for dismissal of the writ petition. -5- WP No. 611 of 2023
6. As there was allegation of construction of building in deviation of the sanction plan, this Court by order dated 11.01.2023 directed the respondent-BBMP to conduct inspection of the building in question, to find out deviation from the sanction plan, if any. Accordingly, inspection report dated 31.01.2023 is filed which indicates the deviation as follows :-
"Details of deviations in the As "Built Building"
Remarks As pet As per As Deviation with Percentage Sl. Sanctioned Built reference to Details of Deviation No Plan Building sanctioned (in %) (in Mtrs) (in Mtrs) Plan (in Mtrs) 1 2 3 4 5 6 7 1 Setback i.Front 3.0 3.0 ii.Rear 1.95 2.1 iii.Left 1.34 0.45 0.89 66.41 iv.Right 2.02 1.80 0.22 10.89 2 Height of the 11.40 14.50 3.10 27.19 Building Building has been sanctioned for Stilt+3 upperfloors but as-built is for Ground+3 upperfloors. Eventhough the applicant has built for G+3 upperfloors, which should be within 11.4m but applicant has increased the floor height by 1m on each floor, the overall height is increased to 14.05m."
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7. The respondent-BBMP is legally obliged to take action or initiate proceedings under Section 248 of the Bruhat Bengaluru Mahanagara Palike Act, 2020, (for short 'the Act') when it notices unauthorized construction or construction in deviation of sanction plan. At this stage, this Court would not venture to find out whether there is deviation from the sanction plan or whether the construction is in accordance with the 2003 Building Byelaws. It would be appropriate to direct respondents 2 and 3 to initiate proceedings under Section 248 of the 2020 Act to find out as to whether deviation or construction is in violation of Building Bye-laws. Hence the following order :-
Respondents 2 and 3 are directed to consider the representation of the petitioner at Annexure-A dated 23.08.2022 and initiate proceedings under Section 248 of the 2020 Act forthwith. Till the proceedings are completed in terms of Section 248 of the 2020 Act, respondents 4 to 6 shall not proceed with further construction. -7- WP No. 611 of 2023
With the above the writ petition stands disposed of.
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JUDGE NG CT:bms List No.: 1 Sl No.: 14