Mr M R Jaishankar vs Bruhath Bangalore Mahanagara ...
2022 Latest Caselaw 5657 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 29TH DAY OF MARCH, 2022

                           BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

             WRIT PETITION No.994 OF 2012 (LB-BMP)

BETWEEN:

MR.M.R.JAISHANKAR
S/O RAMACHANDRA SHETTY
AGED ABOUT 56 YEARS
RESIDING AT SHANTINIKETAN
15/3-1, PALACE ROAD
BENGALURU - 560 052.
                                                ... PETITIONER

(BY SRI V.SRINIVASA RAGHAVAN, SR.ADVOCATE (PHYSICAL
    HEARING))

AND:

1.     BRUHATH BANGALORE MAHANAGARA PALIKE
       N.R.SQUARE,
       BENGALURU - 560 002
       REPRESENTED BY ITS
       COMMISSIONER.

2.     THE ASSISTANT EXECUTIVE ENGINEER
       VASANTH NAGAR
       B.B.M.P.
       BENGALURU.

3.     MR.MOHANDAS D.SHETTY
       AGED ABOUT 66 YEARS
       S/O LATE K.DEJOO SHETTY
       RESIDING AT APARTMENT NO.501,
                                2



       5TH FLOOR, 'BRIGADE CORONET',
       NO.16, PALACE ROAD
       BENGALURU - 560 052.

4.     MRS. HANNAH M. SHETTY
       AGED ABOUT 59 YEARS
       W/O MR.MOHANDAS D. SHETTY
       RESIDING AT APARTMENT NO.501
       5TH FLOOR, 'BRIGADE CORONET'
       NO.16, PALACE ROAD
       BENGALURU - 560 052.
                                                    ... RESPONDENTS

(BY SRI S.N.PRASHANTH CHANDRA, ADVOCATE FOR R1 AND R2
    (VIDEO CONFERENCING)
    SRI R.V.S.NAIK, SR. ADVOCATE A/W
    SRI NITIN PRASAD AND SRI C.P.SOMANNA, ADVOCATES FOR
    R3 AND R4 (PHYSICAL HEARING))

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 12.12.2011 PASSED BY THE HON'BLE KARNATAKA
APPELLATE TRIBUNAL, BANGALORE IN APPEAL NO. 160 OF 2010
(ANNEXURE 'A' HERETO) AND ETC.,

     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT MADE THE FOLLOWING:-


                               ORDER

The petitioner is before this Court calling in question an

order dated 12-12-2011 passed by the Karnataka Appellate

Tribunal, Bangalore ('the Tribunal' for short) in Appeal No.160 of

2010 and confirmatory order issued by the 1st

respondent/Bruhat Bengaluru Mahanagara Palike ('BBMP' for

short) on 22-02-2010.

2. Heard Sri.V.Srinivasa Raghavan, learned senior counsel

for petitioner, Sri.S.N.Prashanth Chandra, learned counsel for

respondent Nos.1 and 2, Sri.R.V.S.Naik, Senior counsel along

with Sri.Nitin Prasad and Sri.C.P.Somanna, learned counsel for

respondent Nos.3 and 4.

3. Brief facts leading to the filing of the present petition, as

borne out from the pleadings, are as follows:-

'Brigade Coronet' is the apartment that is the subject

matter of the present lis. The petitioner is the owner of ground

floor Flat No.G1. Respondents 3 and 4 are owners of Flat

No.501 on the 5th floor. The residential project in the afore-

named was developed and constructed pursuant to a Joint

Development Agreement dated 28-05-2003 between the land

owners and M/s Brigade Enterprises. The petitioner was the

Managing Director of M/s Brigade Enterprises. The construction

preceded necessary sanction, approval of plan and all other legal

necessities for putting up the said construction. The petitioner

occupies Flat No.G1 in the ground floor and respondents 3 and

4 after agreements and inspecting property sought to occupy

Flat No.501.

4. Dispute arose between respondents 3 and 4 who are

owners of Flat No.501 and one of the other apartment owner

who owns Flat No.401 on the fourth floor for the reason that the

said owner of Flat No.401 had put up a pergola. Both

respondents 3 and 4 approached the developer with a request to

extend the terrace floor by extending the balcony in the front

attached to their hall and to one of their bed rooms. If the

aforesaid repair would not come about, the owners of Flat

No.501 wanted the pergola put up by the other flat owner to be

removed. When the grievance was put to the developer, it was

intimated that extending balcony in respect of respondents 3

and 4 would become structurally unsafe and since the developer

had already sold the flats and handed over their possession to

the flat owners who had formed an Association they should

pursue their grievance with their Association in view of

maintenance of flats having been handed to the Association. It

was also intimated to respondents 3 and 4 that the Association

would be competent to redo the structure, if any.

5. Not stopping at this, a civil suit is instituted by the

owners of Flat No.501 in O.S.No.1538 of 2008 in which the

Developer was also made a party. It is the case of the petitioner

that since Developer did not accede to the request of removal or

repair of Pergola he had been dragged into civil proceedings.

After instituting civil proceedings respondents 3 and 4 also gave

a representation to the BBMP contending that the floor in which

the petitioner was residing - ground floor Flat No.G1 was

constructed contrary to law and that has to be demolished.

Therefore, pergola being constructed on the 4th floor and the

request for repair being not acceded to, resulted in a

representation being made to the BBMP seeking demolition of

Flat G1. When the representation of respondents 3 and 4 did not

merit any consideration at the hands of the BBMP, they

approached this Court in Writ Petition No.24817 of 2009 seeking

a mandamus for consideration of their representation.

Respondents 3 and 4 claim that this Court had directed the

respondent/BBMP to consider their representation and pass

appropriate order. Pursuant to the said direction, the BBMP

issued a provisional order in the name of Brigade Coronet and

later issued a confirmatory order dated 22-02-2010 under sub-

sections (1) and (2) of Section 321 of the Karnataka Municipal

Corporations Act, 1976 ('the Act' for short) directing demolition

of the alleged violation of the sanctioned plan insofar as it

pertains to petitioner's flat. Against the said order, the

petitioner preferred an appeal before the Tribunal in Appeal

No.160 of 2010. On 8.03.2010 the Tribunal directs the parties to

maintain status quo. After issuance of notice to the BBMP by the

Tribunal, respondents 3 and 4 filed an impleading application to

come on record before the Tribunal. This having been allowed,

respondents 3 and 4 were also heard by the Tribunal. The

Tribunal by its order dated 12-12-2011 dismissed the appeal

filed by the petitioner thereby confirming the provisional and

confirmatory orders that were passed by the BBMP. It is

challenging the said order the petitioner is before this Court.

6. This Court while entertaining the writ petition, by its

order dated 18.01.2012, directed the parties to maintain status

quo. The interim order has been in operation even as on date.

Therefore, 10 years have passed by with the parties maintaining

status quo.

7. The learned senior counsel representing the petitioner

Sri V. Srinivass Raghavan would submit that the notice issued

under Section 321(1) & (2) of the Act was not on the petitioner.

The petitioner was an individual owner of the flat and no notice

under Section 321(1) and (2) is served on him. The notice is

served on the enterprise 'Brigade Coronet' which had ceased to

exist after construction of flats, handing over flats to the flat

owners and the Association of the flat owners being formed in

the said apartment complex. Reply to the notice is also given by

Brigade Coronet. The learned senior counsel would further

submit that on the date on which the provisional order was

passed there was violation, but as on date the BBMP itself

having increased the FAR, the ground floor is within the

permissible limits obtaining under the building byelaws of the

BBMP. He also submits that personal vendetta of the Developer

in not acceding to the request of removal of pergola has led to all

these problems.

8. On the other hand, the learned senior counsel Sri R.V.S.

Naik appearing for respondents 3 and 4 would contend that

under the Karnataka Ownership Flats (Regulation of the

Promotion of Construction, Sale, Management and Transfer) Act,

1972 ('1972 Act' for short) once the flat owners occupy the flats

it was disclosed at the time when they entered into an agreement

for flats that the plan cannot be changed. It is the case of

respondents 3 and 4 that flat G1 in the ground floor was never

shown in the plan and it is after entering into agreements with

the flat owners the petitioner's flat is constructed and therefore,

it is in violation of the 1972 Act. He would also submit that sub-

sections (1) and (2) of Section 321 of the Act direct notices to be

issued either to the owner or the builder. In the light of owner or

the builder to be issued with notice, the Brigade Coronet was

rightly issued the notice, as it was the developer and the builder

and the petitioner being its Managing Director was staying in the

very flat. Therefore, there is compliance with the Act and

natural justice. He would submit that in any case petitioner's

flat should be demolished as it is admittedly in violation of law.

9. The learned counsel appearing for the BBMP would

however submit that the BBMP has acted in accordance with

law and would admit that to-day FAR is different from what was

earlier and the flat of the petitioner is now in tune with law.

10. I have given my anxious consideration to the

submissions made by the respective learned senior counsel and

the learned High Court Government Pleader and perused the

material on record.

11. The afore-narrated facts are not in dispute. What is

germane to be noticed before entering upon the merits of the

matter is, whether the petitioner was issued with notice, heard

prior to passing the order by the BBMP. The Tribunal notices

that the petitioner was the Managing Director of Brigade Coronet

and holds that Brigade Coronet had been issued notice which is

enough compliance with the principles of natural justice.

Pursuant to the direction issued by this Court in the aforesaid

writ petition directing consideration of the representation, what

is to be noticed is, in whose name the notice is issued by the

BBMP. Section 321 of the Act reads as follows:

"321. Demolition or alteration of buildings or well work unlawfully commenced, carried on or completed.--(1) If the Commissioner is satisfied,--

(i) that the construction or re-construction of any building or hut or well,--

(a) has been commenced without obtaining his permission or where an appeal or reference has been made to the standing committee, in contravention of any order passed by the standing committee; or

(b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based; or

(c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye- law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye-laws; or

(ii) that any alteration required by any notice issued under section 308, have not been duly made; or

(iii) that any alteration of or addition to any building or hut or any other work made or done for any purpose into, or upon any building or hut, has been commenced or is being carried on or has been completed in breach of section 320,

he may make a provisional order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Commissioner, has been unlawfully executed, or make such alterations as may, in the opinion of the Commissioner, be necessary to bring the work into conformity with the Act, rules, bye-laws, directions or requisitions as aforesaid, or with the plans or particulars on which such permission or orders was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well or hut.

(2) The Commissioner shall serve a copy of the provisional order made under sub-section (1) on the owner or builder of the building or hut or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed.

(3) If the owner or builder fails to show cause to the satisfaction of the Commissioner, the Commissioner may confirm the order, with any modification he may think fit and such order shall then be binding on the owner.

(4) If the construction or reconstruction of any building or hut is commenced contrary to the provisions of section 300

or 314 and the Commissioner is of the opinion that immediate action should be taken, then, notwithstanding anything contained in this Act, a notice to be given under sub-section (2) shall not be of less duration than twenty-four hours and shall be deemed to be duly served if it is affixed in some conspicuous part of the building or hut to which the notice relates and published by proclamation at or near such building or hut accompanied by beat of drum, and upon such affixation and publication, all persons concerned shall be deemed, to have been duly informed of the matters stated therein."

In tune with the Act, the BBMP issues notice on 09-12-2009.

The said notice reads as follows:

"¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ ªÁqïð 78(93) ¸ÀASÉå. 16. ©æUÉqï PÁgÀ£ÉÃmï, ¥Áå¯Éøï gÀ¸ÉÛ, ¨ÉAUÀ¼ÀÆgÀÄ F PÀlÖqÀzÀ £É® ªÀĺÀrAiÀÄ ªÁºÀ£À ¤®ÄUÀqÉ eÁUÀªÀ£ÀÄß ªÁ¸ÀzÀ ªÀÄ£ÉAiÀiÁV ¥ÀjªÀwð¸À¯ÁVzÀÄÝ, C£À¢üPÀÈvÀªÁV PÀlÖqÀ ¤«Äð¸À¯ÁVzÉ. ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ PÀlÖqÀzÀ ¨ÉʯÁUÀ¼ÀÄ ºÁUÀÆ EvÀgÀ ¤AiÀĪÀÄUÀ¼À£ÀÄß G®èAX¹ PÀlÖqÀ ¤«Äð¹gÀĪÀÅzÀjAzÀ ¤ªÀÄUÉ F PÀbÉÃjAiÀÄ vÁvÁÌ°PÀ DzÉñÀ ¸ÀASÉå. ¸À.¸À.PÁ.C./ªÀ¸ÀAvÀ£ÀUÀgÀ/¦.M/ /2009- 10, ¢£ÁAPÀ: 12-2009, gÀ°è w½¸À¯ÁVzÉ. ºÁUÀÆ ¸ÀzÀj DzÉñÀªÀ£ÀÄß ®UÀwÛ¹zÉ.

F DzÉñÀPÉÌ C£ÀÄUÀÄtªÁV ¤ÃªÀÅ ¸ÀªÀÄeÁ¬Ä¶ PÉÆlÄÖ CxÀªÁ G®èAWÀ£ÉUÀ¼À£ÀÄß ¸Àj¥Àr¹ ªÀgÀ¢ ªÀiÁqÀĪÀ vÀ£ÀPÀ £ÀPÉëUÉ «gÀÄzÀÞªÁV ºÁUÀÆ ªÉÄÃ¯É £ÀªÀÄÆ¢¹gÀĪÀ ¨ÉʯÁUÉ «gÀÄzÀÞªÁV PÁ£ÀÆ£ÀĨÁ»gÀªÁV PÀlÖqÀªÀ£ÀÄß ¤«Äð¸À¯ÁVgÀĪÀÅzÀjAzÀ F DzÉñÀ eÁjAiÀiÁzÀ vÀPÀët vÉgɪÀÅUÉƽ¸À®Ä £ÀUÀgÀ ¥Á°PÉAiÀÄ C¢ü¤AiÀĪÀÄ 1976 gÀ «¢ü 321(1) gÀ£ÀéAiÀÄ F ªÀÄÆ®PÀ DzÉò¸ÀÄvÉÛãÉ.

PÀ£ÁðlPÀ £ÀUÀgÀ¥Á°PÉUÀ¼À C¢ü¤AiÀĪÀÄ 1976 gÀ «¢ü 321(1) gÀ£ÀéAiÀÄ F DzÉñÀªÀ£ÀÄß ºÉÆgÀr¹gÀĪÀ F ¤zÉÃð±À£ÀªÀ£ÀÄß G®èAX¹zÀÝ°è F DzÉñÀªÀ£ÀÄß eÁjUÉƽ¸À®Ä ¸ÀzÀj C¢¤AiÀĪÀÄ «¢ü, 462 gÀAvÉ ºÁUÀÆ EvÀgÉ PÁ£ÀƤ£À CA±ÀUÀ¼ÀAvÉ ¤ªÀÄä «gÀÄzÀÝzÀ PÀæªÀÄ PÉÊUÉƼÀî¯ÁUÀĪÀÅzÉAzÀÄ F ªÀÄÆ®PÀ w½AiÀÄ¥Àr¹zÉ. ºÁUÀÆ F §UÉÎ PÉÊUÉƼÀî¯ÁUÀĪÀ AiÀiÁªÀÅzÉà eÁj PÀæªÀÄUÀ¼À

RZÀÄð ªÉZÀÑ£ÀÄß ¨sÀj¸À®Ä ¸ÀzÀj PÁ£ÀƤ£À «¢ü 463 gÀAvÉ ¤ÃªÉà dªÁ¨ÁÝgÀgÁVgÀÄwÛÃgÉAzÀÄ ºÁUÀÆ ¤«ÄäAzÀ ¸ÀzÀj RZÀð£ÀÄß ªÀ¸ÀÆ®Ä ªÀÄqÀ¯ÁUÀĪÀÅzÉAzÀÄ w½AiÀÄ¥Àr¹zÉ."

The notice issued on 09-12-2009 was the first notice. It is issued

under sub-section (2) of Section 321 of the Act. The provisional

order made under sub-section (1) of Section 321 is not even

mentioned in the notice and the notice under sub-section (2) of

Section 321 is issued to Brigade Coronet. A preliminary

response is given to the said notice by the legal head of Brigade

Coronet and the reply, at the outset, was seeking opportunity to

file detailed objections as also personal hearing. The reply at

paragraphs 2 and 3 reads as follows:

"2. Without prejudice to the above requests, it is also pointed out that the captioned notice/provisional order is addressed to 'Brigade Coronet'. It is not a legal entity by itself and as such, could not be served with any notice. 'Brigade Coronet' is only the name of the Project and as such, notice/provisional order issued to non-entity is not proper and bad in law.

3. The project 'Brigade Coronet' is built on a land belonged to 5 partnership firms represented by Mr. V. Chokkalingam & M/s Sree Villiappa Investments (P) Limited & in whose name the plan is sanctioned, they are necessary parties to the proceedings. As the proposed action by BMP will jeopardize the legal rights of the land owners, they will be required to be notified under law of any action proposed in relation to the said premises. Action

taken without giving a due opportunity to the owner and occupant of the premises, who will be the affected parties, would be in violation of the principles of natural justice."

A further reply was given on 02-02-2010 again by Brigade

Coronet. The said reply reads as follows:

"Ref: 1) Your notice dated 9-12-2009 bearing No.S.Ka.A/Vasanthnagar/PD/17/2009-10.

2) Our preliminary response dated 18-12-2009 to the above notice.

--

With respect to the above, we wish to state as follows:-

1. We have already submitted our preliminary response dated 18-12-2009 to the impugned notice and in continuation of the same, we are submitting herewith additional response. Both the responses shall be read together to understand and evaluate our contentions, before any final order is passed.

2. WE submit that plan for construction of residential building consisting of Basement+Ground+Eight upper floors at No.16, Palace Road, Bangalore-52 was sanctioned vide LP No.11/03-04 dated 15-11- 2003. When we applied for occupancy certificate after the building was fully completed, the same was inspected by the Joint Director of Town Planning. There were certain changes in the building from the sanctioned plan. These changes were regularised by the Commissioner in his note dated 12-01-2006 as recommended by the Committee by levying a penalty of Rs.11,43,000/- after ensuring that the deviations are within the permissible limit of 5% from the

sanctioned plan. Accordingly, Occupancy Certificate dated 28-01-2006 came to be issued by Bangalore Mahanagara Palike for the said building.

3. Without prejudice to our contentions taken up in the preliminary response, we submit that the entire building as existing now is within 1.75 FAR, which is the FAR applicable after Revised Master Plan 2007 came into force. We are willing to submit the modified plan in this regard, if required for approval and to pay the requisite fee in this regard.

4. Without prejudice to our contentions taken up in the preliminary response, we submit that Government of Karnataka had finalized the Akrama Sakrama Scheme and forwarded the same for consent from Governor of Karnataka. The Scheme provides for 50% deviations in case of residential and 25% in case of commercial to be regularized. In our case, we are well within percentage deviations prescribed for regularization of residential and also, the entire building as existed as on date is within 1.75 FAR, as available as on date. Akrama Sakrama Scheme was referred back to the Government by the Governor for reconsideration and the Scheme is expected to get the approval from both the houses in State Assembly and is expected to be published with the approval from Governor soon and only in view of Corporation Bye Election scheduled during this year, the publication of notification has been postponed. Once the same is approved and published after the Corporation Bye Election, we would make necessary application to regularize the deviations if any, after paying the regularization fee.

5. It is further submitted that in Bangalore, there are many number of constructions that are due to be regularized by the Government of Karnataka under the aforesaid Akrama Sakrama Scheme. Passing any order by Authority oblivious of the proposed

Scheme is unsustainable and not maintainable under law. Also, Brigade should not be singled out and treated differently from others, when everybody knows that Akrama Sakrama Scheme is going to be implemented soon.

6. We are also contemplating to regularize the additional construction on the basis of capitalizing on the Transferable Development Rights (TDR) which was introduced by the Government of Karnataka through its Gazette Notification dated 18-01-2005.

7. It is submitted that Brigade has paid the pro rata charges to BWSSB for the entire Brigade Coronet Project including for Ground Floor G-1 Apartment and BWSSB has permitted water connection for 11 flats including G-1 through its endorsement No.117/05-06 dated 27-02-2006. The entire Brigade Coronet Project has been assessed to property tax by Bangalore Mahanagara Palike and Ground Floor G-1 Apartment was also assessed to property tax by Bangalore Mahanagara Palike and a Special Notice dated 29-03-2006 came to be issued by Bangalore Mahanagara Palike in this regard by fixing total tax of Rs.11,984/- per annum w.e.f. 01-04-2006 for Ground Floor G-1 Apartment.

8. In the light of above objections (made through this objection statement and also Preliminary Objections dated 18-12-2009), you are requested to drop all further proceedings in the above case.

9. We request you to confirm us above the closure of the above proceedings.

Thanking you."

Both the replies were given by Brigade Coronet through its legal

cell. In fact, the third reply is also given on 06-02-2010. After

receipt of the reply, another notice dated 22-02-2010 is issued in

terms of Section 321(1) & (2) read with Section 505 of the Act,

which reads as follows:

"ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ ¸ÀéwÛ£À ¸ÀASÉå 16 ©æUÉÃqï PÁgÀ£ÉÃmï ¥Áå¯Éøï gÀ¸ÉÛ ¨ÉAUÀ¼ÀÆgÀÄ ªÁqïð ¸ÀASÉå 78(93) PÀlÖqÀzÀ £É® ªÀĺÀrAiÀÄ ªÁºÀ£À ¤®ÄUÀqÉ eÁUÀªÀ£ÀÄß ªÁ¸ÀzÀ ªÀÄ£ÉAiÀÄ£ÁßV §¼À¸ÀÄwÛgÀĪÀÅzÀgÀ ¥ÀæAiÀÄÄPÀæ G¯ÉèÃR ¸ÀASÉå 1gÀ°è vÀªÀÄUÉ PO £ÉÆÃnøÀ£ÀÄß eÁjªÀiÁqÀ¯ÁVvÀÄÛ. G¯ÉèÃR ¥ÀvÀæ 4gÀ°è Personal hearing PÀgÉAiÀįÁVvÀÄÛ. vÁªÀÅUÀ¼ÀÄ vÀªÀÄä ¥ÀvÀæ G¯ÉèÃR ¸ÀASÉå 2.3.5gÀ°è w½¹gÀĪÀAvÉ ¸ÁPÀµÀÄÖ PÁ®ªÀPÁ±À ¤ÃqÀ¯ÁVvÀÄÛ. DzÁUÀÆå vÁªÀÅUÀ¼ÀÄ PÁgï ¥ÁQðAUï eÁUÀªÀ£ÀÄß vÉgÀªÀÅUÉƽ¸ÀĪÀ §UÉÎ AiÀiÁªÀÅzÉà jÃwAiÀÄ ¸ÀªÀÄAd¸ÀªÁzÀ ºÁUÀÆ ¸ÀÆPÀÛªÁzÀ ªÀiÁ»wAiÀÄ£ÀÄß ¤Ãr®èzÀ PÁgÀt¢AzÀ ºÁUÀÆ ¸ÀªÀÄAd¸ÀªÀ®èzÀÝjAzÀ P£ÁÀðlPÀ ªÀÄĤ¹¥À¯ï PÁ¥ÉÆðgÉõÀ£ï PÁAiÉÄÝ 1976gÀr 321(1) ªÀÄvÀÄÛ (2) R/W Section 505 of KMC Act 1976 gÀrAiÀÄ°è F £ÉÆÃnøï vÀ®Ä¦zÀ 7 ¢£ÀUÀ¼À M¼ÀUÁV vÉUÉzÀÄPÉƼÀî®Ä CAwªÀÄ £ÉÆÃnøï eÁj ªÀiÁqÀ¯ÁVzÉ. vÀ¦àzÀ°è PÁ£ÀÆ£ÀÄ jÃw PÀæªÀÄ dgÀÄw¸À¯ÁUÀĪÀÅzÀÄ.

¸À»/- 22/2/10 ¸ÀºÁAiÀÄPÀ PÁAiÀÄð¥Á®PÀ C©üAiÀÄAvÀgÀªÀgÀÄ ªÀ¸ÀAvÀ£ÀUÀgÀ G¥À«¨sÁUÀ §ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ gÀªÀjUÉ,

1. ²æà ©æUÉÃqï PÁgÀ£ÉÃmï ºÀÄ°PÀ¯ï ©æUÉÃqï ¸ÉAlgï £ÀA.82, ®ÁåªÉ°è gÉÆÃqï ¨ÉAUÀ¼ÀÆgÀÄ.

2. ²æÃ.JA.Dgï.dAiÀıÀAPÀgï c/o ©æUÉÃqï PÁgÀ£ÉÃmï ºÀÄ°PÀ¯ï ©æUÉÃqï ¸ÉAlgï £ÀA.82, ®ÁåªÉ°è gÉÆÃqï ¨ÉAUÀ¼ÀÆgÀÄ."

It is for the first time the petitioner is also named in the notice

for communication. To this notice, copy of notice under Section

321(1) of the Act which was not earlier furnished was appended.

The notice dated 09-12-2009 issued under Section 321(1) of the

Act reads as follows:

"PÀ£ÁðlPÀ ªÀÄĤ¹¥À¯ï PÁ¥ÉÆðgÉõÀ£ï PÁAiÉÄÝ 1967 gÀ PÀ®A 1976gÀ PÀ®A 321(1)gÀ ¥ÀæPÁgÀ ºÉÆgÀr¹gÀĪÀ vÁvÁÌ°PÀ DzÉñÀ.

¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ ªÁqïð 79(93) ¸ÀASÉå 16 ©æUÉÃqï PÁgÀ£ÉÃmï, ¥Áå¯Éøï gÀ¸ÉÛ, ¨ÉAUÀ¼ÀÆgÀÄ, J¯ï.¦. £ÀA. J¸ïJ£ï/11/03-04 gÀ°è ¢£ÁAPÀ:15-12-2003 gÀ°è dAn ¤zÉÃð±ÀPÀgÀÄ f.r.n.¦. CªÀgÀÄ ªÀÄAdÆgÁwAiÀÄ «gÀÄzÀÞ C£À¢üPÀÈvÀªÁV PÀlÖqÀ ¤«Äð¹gÀÄvÁÛgÉ.

¸ÀºÁAiÀÄPÀ C©üAiÀÄAvÀgÀgÀ ªÀgÀ¢AiÀÄ ¥ÀæPÁgÀ ºÁUÀÆ ¸ÀܼÀ ¥Àj²Ã®£ÉAiÀÄ ¥ÀæPÁgÀ ¸ÀéwÛ£À ¸ÀASÉå 16, ©æUÉÃqï PÁgÀ£ÉÃmï, ¥Áå¯Éøï gÀ¸ÉÛ, ¨ÉAUÀ¼ÀÆgÀÄ, ªÁqïð ¸ÀASÉå:78(93) gÀ°è C£À¢üPÀÈvÀªÁV PÀ£ÁðlPÀ ªÀÄĤ¹¥À¯ï PÁ¥ÉÆÃðgÉõÀ£ï PÁAiÉÄÝ 1976 ªÀÄvÀÄÛ ¤AiÀĪÀÄ ªÀÄvÀÄÛ ¨ÉʯÁUÀ¼À£ÀÄß G®èAX¹ PÀlÖqÀªÀ£ÀÄß ¤ªÀiÁðt ªÀiÁrgÀĪÀÅzÀÄ £ÀªÀÄUÉ ªÀÄ£À:¥ÀÆwðAiÀiÁV zÀÈqsÀ¥ÀnÖgÀÄvÀÛzÉ.

«ªÀgÀ

PÀæ.¸ÀA. «ªÀgÀUÀ¼ÀÄ C£ÀĪÉÆÃzÀ£É ºÁ° ªÀåvÁå¸À ±ÉÃPÀqÀªÁgÀÄ UÉÆArgÀĪÀAvÉ PÀnÖgÀĪÀAvÉ ªÀåvÁå¸À 11 ¸Émï ¨ÁåPïì ªÀÄÄA¨sÁUÀ 10.00. «Äà 10.00. «Äà - -

              »A¨sÁUÀ       10.00 «ÄÃ            10.00. «ÄÃ             -               -
              JqÀ¨sÁUÀ      10.00. «Äà           10.00. «Äà             -               -
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2             PÀªÀgÉÃeï            23%                23%               -               -

µÀgÁ: C£ÀĪÉÆÃzÀ£ÉUÉÆArgÀĪÀ £ÀPÉëAiÀÄ ¥ÀæPÁgÀ £É® ªÀĺÀrAiÀÄ ªÁºÀ£À ¤®ÄUÀqÉUÉ ¹Ã«ÄvÀªÁVzÉ. DzÀgÉ C£À¢üPÀÈvÀªÁV ªÁ¸ÀzÀ ªÀÄ£ÉAiÀÄ£ÀÄß ¤«Äð¸À¯ÁVzÉ. ªÁºÀ£À ¤®ÄUÀqÉUÉ C£ÀĪÉÆÃzÀ£ÉUÉÆArgÀĪÀ 440.13 ZÀzÀÄgÀ «ÄÃ. eÁUÀzÀ°è 276.96 ZÀzÀÄgÀ «ÄÃlgïUÀ¼À£ÀÄß ªÁ¸ÀzÀ ªÀÄ£É ¤ªÀiÁðtPÁÌV G¥ÀAiÉÆÃV¹zÀÄÝ, E£ÀÄß½zÀ 163.15 ZÀ.«ÄÃlgï SÁ° eÁUÀ ©qÀ¯ÁVzÉ. ªÁ¸ÀzÀ ªÀÄ£É ¤ªÀiÁðtPÁÌV vÉUÉzÀÄPÉƪÀÄrgÀĪÀ ±ÉÃPÀqÀªÁgÀÄ eÁUÀ 62.94%.

EzÀjAzÀ PÀlÖqÀ ªÀiÁ°ÃPÀgÀÄ C£À¢üPÀÈvÀªÁV PÀlÖqÀªÀ£ÀÄß ¤ªÀiÁðt ªÀiÁrzÁÝgÉ ªÀÄvÀÄÛ PÀ£ÁðlPÀ ªÀÄĤ¹¥À¯ï PÁ¥ÉÆÃðgÉõÀ£ï PÁAiÉÄÝ 1976 ªÀÄvÀÄÛ CzÀgÀ CrAiÀÄ°è gÀavÀªÁVgÀĪÀ ¤ªÀiÁðt ¤AiÀĪÀiÁªÀ½UÀ¼À£ÀÄß ªÀÄvÀÄÛ ¨ÉʯÁUÀ¼À£ÀÄß G®èAX¹zÁÝgÉ. DzÀÄzÀjAzÀ £Á£ÀÄ F PɼÀPÀAqÀAvÉ DzÉñÀ ªÀiÁrgÀÄvÉÛãÉ.

vÁvÁÌ°PÀ DzÉñÀ

ªÉÄîÌAqÀ CA±À ºÁUÀÆ «ªÀgÀUÀ½AzÀ PÀlÖqÀzÀ ªÀiÁ°ÃPÀgÀÄ, ©æUÉÃqï PÁgÀ£ÉÃmï, £ÀA.16, ¥Áå¯Éøï gÀ¸ÉÛ, ¨ÉAUÀ¼ÀÆgÀÄ gÀ°è PÀlÖqÀªÀ£ÀÄß C£À¢üPÀÈvÀªÁV PÀ£ÁðlPÀ ªÀÄĤ¹¥À¯ï PÁ¥ÉÆÃðgÉõÀ£ï PÁAiÉÄÝ 1976 ¤AiÀĪÀÄ ªÀÄvÀÄÛ ¨ÉʯÁUÀ¼À£ÀÄß G®èAX¹ ¤ªÀiÁðt ªÀiÁrgÀĪÀ PÀlÖqÀªÀ£ÀÄß vÉUÉzÀÄ ºÁQ, PÀ£ÁðlPÀ PÁ¥ÉÆÃðgÉõÀ£ï PÁAiÉÄÝ 1976 ªÀÄvÀÄÛ CzÀgÀrAiÀÄ°è gÀavÀªÁVgÀĪÀ ¤AiÀĪÀiÁªÀ½ ªÀÄvÀÄÛ ¨ÉʯÁUÀ½UÉƼÀ¥ÀqÀĪÀAvÉ PÀlÖqÀªÀ£ÀÄß vÀgÀ¨ÉÃPÉAzÀÄ, vÀ£ÀÆä®PÀ ¤AiÀĪÀiÁªÀ½UÉÀ «gÀÄzÀÞªÁV ¤«Äð¹gÀĪÀ ¨sÁUÀªÀ£ÀÄß PÀÆqÀ¯Éà ¸Àj¥Àr¸À®Ä DzÉò¹zÉ.

CzÀ®èzÉà F vÁvÁÌ°PÀ DzÉñÀªÀ£ÀÄß KPÉ ¹ÜjÃPÀj¸À¨ÁgÀzÉAzÀÄ JA§ÄzÀPÉÌ ¤ªÀÄä ¸ÀªÀÄeÁ¬Ä¶AiÀÄ£ÀÄß F vÁvÁÌ°PÀ DzÉñÀ vÀ®Ä¦zÀ 7 ¢£ÀUÀ¼ÉƼÀUÁV ¤ÃqÀvÀPÀÌzÀÄÝ ºÁUÀÆ MAzÀÄ ªÉÃ¼É ¸ÀªÀÄeÁ¬Ä¶ ¤ÃqÀ®Ä ¤ÃªÀÅ «¥sÀ®gÁzÀ°è CxÀªÁ ¤ÃªÀÅ ¤ÃrgÀĪÀ ¸ÀªÀÄeÁ¬Ä¶AiÀÄÄ ¸ÀªÀiÁzsÁ£ÀPÀgÀªÁV®è¢zÀÝgÉ, F vÁvÁÌ°PÀ DzÉñÀªÀ£ÀÄß ¸ÀÆPÀÛªÉAzÀÄ PÀAqÀħgÀĪÀ ªÀiÁ¥Áðn£ÉÆA¢UÉ, ¹ÜjÃPÀgÀt ªÀiÁqÀ¯ÁUÀĪÀÅzÀÄ. ¹ÜjÃPÀgÀt ªÀiÁrzÀ DzÉñÀªÀ£ÀÄß ¥Á°¸À®Ä ¤ÃªÀÅ §zÀÝgÁVgÀvÀPÀÌzÀÄÝ JAzÀÄ F ªÀÄÆ®PÀ w½¸À¯ÁVzÉ.

             ¸À»/-                                                    ¸À»/-       9/12
     ¸ÀºÁAiÀÄPÀ C©üAiÀÄAvÀgÀgÀÄ                    ¸ÀºÁAiÀÄPÀ PÁAiÀÄ𠤪ÁðºÀPÀ C©üAiÀÄAvÀgÀgÀÄ
      ªÁqïð ¸ÀASÉå: 78(93)                                     ªÀ¸ÀAvÀ£ÀUÀgÀ, G¥À«¨sÁUÀ
                                                           ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ
                                                                    ¨ÉAUÀ¼ÀÆgÀÄ..
     gÀªÀjUÉ,

     ²æà ©æUÉÃqï PÁgÀ£ÉÃmï
         ºÀÄ°PÀ¯ï ©æUÉÃqï ¸ÉAlgï
         £ÀA.82, ®ÁåªÉ°è gÉÆÃqï
        ¨ÉAUÀ¼ÀÆgÀÄ."
                                                           (Emphasis added)

The deviation is noticed in the said communication. It is calling

in question these notices, the petitioner approaches the Tribunal

in Appeal No.160 of 2010. This is rejected on the ground that

there is deviation and sufficient opportunity was given to the

petitioner, both of which are erroneous. Section 321 of the Act

(supra) mandates a notice to be given either to the occupier or

the builder. Notice is given to neither. Notice is given to Brigade

Coronet which was a residential project marketed by the builder.

Therefore, no notice in the eye of law in terms of Section 321(1)

and (2) is ever served on the petitioner.

12. Property is held by the petitioner in his individual

capacity and not as an office bearer of Brigade Coronet. The

finding of the Tribunal is that the petitioner being the Managing

Director of Brigade Coronet had enough notice and the legal

head of Brigade Coronet had replied to the notices issued were

all in tune with Section 321 or in consonance with the principles

of natural justice. The person holding the property is not even

made known of the deviation till an order is passed directing

demolition of the said property under Section 321(2) of the Act.

13. The argument of the learned senior counsel

representing respondents 3 and 4 which is accepted by the

Tribunal is unacceptable for the reason that service of notice on

the person concerned before passing an order of demolition is

mandatory. There may be no question that the petitioner had

enough notice or even aware of the facts of the case and the legal

head of Brigade Coronet had replied to the notice, all of which

will be in compliance with the mandatory provisions of Section

321 of the Act as it is a property that is held by the petitioner

and it is his right over the property. Demolition of property

would take away the right of the petitioner over that property.

Therefore, notice was required to be served individually on the

petitioner. The notice should have been in the name of the

petitioner and not in the name of Brigade Coronet. On this

ground alone the proceedings taken up by BBMP stands vitiated

as the Act itself mandates that. Section 455 of the Act details

method of serving documents and reads as follows:

"455. Method of serving documents.--

(1) When any notice or other document is required by this Act or by any rule, bye-law, regulation or order

made under it to be served on or sent to any person, the service or sending thereof may be effected,--

(a) by giving or tendering the said document to such person; or

(b) if such person is not found, by leaving such document at his last known place of abode or business or by giving or tendering the same to his agent, clerk or servant or some adult member of his family; or

(c) if such person does not reside in the city and his address elsewhere is known to the Commissioner, by sending the same to him by registered post; or

(d) if none of the means aforesaid be available, by affixing the same in some conspicuous part of such place of abode or business.

(2) When the person is an owner or occupier of any building or land it shall not be necessary to name the owner or occupier in the document, and in the case of joint owners and occupiers it shall be sufficient to serve it on, or send it to, one of such owners or occupiers.

(3) Whenever in any bill, notice, form or other document served or sent under this Act, a period is fixed within which any tax or other sum is to be paid or any work executed or anything provided, such period shall, in the absence of an express provision to the contrary in this Act, be calculated from the date of such service or sending by registered post."

The mandate of Section 455 of the Act is that if any notice or

document is to be served or sent to any person, the document

shall be given to such person and if such person is not found, by

leaving the document to the last known place of abode. If none of

the means aforesaid are available, by affixing the same in some

conspicuous part of such place of abode or business. In the light

of the mandate of Section 455 of the Act if the case at hand is

noticed, it becomes unmistakably clear that the notice was never

served on the individual/petitioner or property which is sought

to be demolished.

14. The submissions of the learned senior counsel

appearing for respondents 3 and 4 run counter to law and

cannot be accepted. On this short ground that the petitioner was

not heard before any notice under Section 321 of the Act was

issued, the order of the Tribunal and the confirmation order

passed by the BBMP impugned herein are rendered

unsustainable. It is now for the BBMP to issue such notice, hear

the parties and pass appropriate orders. Since the petition is

being disposed of on the short ground of want of compliance

with the principles of natural justice, plethora of judgments

relied on by both the parties to the lis are not considered.

15. For the aforesaid reasons, I pass the following:

ORDER

(i) Writ Petition is allowed in part.

(ii) Order dated 12-12-2011 passed by the Karnataka Appellate Tribunal, Bangalore in Appeal No.160 of 2010 and the confirmatory order dated 22-02-2010 issued by the Bruhat Bengaluru Mahanagara Palike/respondent No.1 stand quashed.

(iii) The matter is remitted back to the hands of the BBMP to issue individual notice to the petitioner, hear the parties to the lis and pass appropriate orders in accordance with law. While so doing, the BBMP shall consider the contentions of both the parties.

(iv) All the other contentions which are not answered in the case at hand shall remain open.

Sd/-

JUDGE

bkp CT:MJ