Karnataka High Court
Air Marshal Loreto Pereira vs The Commissioner on 3 April, 2024
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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WP No. 5759 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 5759 OF 2020 (LB-BMP)
BETWEEN:
AIR MARSHAL LORETO PEREIRA
S/O LATE L X PEREIRA,
AGED 93 YEARS, R/AT NO.303,
3RD FLOOR, DENNISON APARTMENT,
NO12, (OLD NO.20), HALL ROAD,
RICHARDS TOWN,
BENGALURU 560005.
SINCE DECEASED REP. BY WIFE
MRS. PAMELA ANN PEREIRA
W/O. LATE AIR MARSHAL LORETO PEREIRA
AGED 88 YEARS,
RESIDING AT NO.303
3RD FLOOR, DENNISON APARTMENT NO.12
Digitally
signed by OLD NO.20, HALL ROAD, RICHARDS TOWN
ANAND N
BENGALURU - 560 005.
Location:
HIGH ...PETITIONER
COURT OF
KARNATAKA (BY SRI. SWAMY N B N.,ADVOCATE)
AND:
1. THE COMMISSIONER,
BRUHUT BENGALURU
MAHANAGARA PALIKE ( BBMP)
HEAD OFFICE,
HUDSON CIRCLE,
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WP No. 5759 of 2020
BENGALURU 560002.
2. MRS. PREMILA GRUBB
WIFE OF MR. GRUBB
AGED ABOUT 62 YEARS
RESIDING AT FLAT NO. 003
DENNISON APARTMENT NO.12
OLD NO. 20 HALL ROAD,
RICHARDS TOWN
BENGALURU - 560 005.
...RESPONDENTS
(BY SRI.PAWAN KUMAR., ADVOCATE FOR
SRI H.DEVENDRAPPA, ADVOCATE FOR R-1;
SRI.ANIL KUMAR SHETTY, ADVOCATE FOR R2)
THIS WP IS FILED UNDER ARTICLES 226 OF THE
CONSTITUTION OF INDIA PRAYING TO-DIRECT THE
RESPONDENT, THE COMMISSIONER, BRUHUT
BENGALURU MAHANAGARA PALIKE, BENGALURU TO
COMPLY WITH THE DIRECTIONS/OBSERVATIONS
PASSED BY THIS COURT IN THE JUDGMENT AND
DECREE PASSED ON 26TH APRIL 2013 IN RFA
NO.1725/2005 (ANNEXURE-D) AS DIRECTED BY THE
COURT IN THE ORDER PASSED ON 9TH DECEMBER
2014 IN W.P.NO.29786/2014 (ANNEXURE-G) AND
COMPLY IT WITHIN A TIME LIMITI.
THIS PETITION, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 5759 of 2020
ORDER
The original petitioner has died, and these
proceedings are continued by his legal representative
[the wife]. These proceedings are initiated for a
direction to the Commissioner, Bruhat Bangalore
Mahanagar Palike [BBMP] to comply with the
asserted directions by this Court in RFA
No.1725/2005 and W.P.No.29786/2014 which are
disposed of on 26.04.2013 and 09.12.2014
respectively.
2. This Court's observation in RFA
1725/2005 as regards the petitioner's complaint
about the alleged deviation is as follows:
"The developer and the owner cannot
violate the building bye-laws by
encroaching the set back, which is
necessary for safety measure and for
maintenance of the apartments. Hence,
the dismissal of the suit will not affect the
right of the plaintiff to move the appropriate
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authority or initiate fresh proceeding only
with regard to the said set back area."
3. This Court's direction/observation in
W.P.No.29786/2014 is as follows:
"Without going into the merit or
demerit of the claims of either of the
parties, suffice it to notice that it is for
respondents 1 and 2 to take action in
accordance with law in order to ensure due
compliance with the observations in the
judgment and decree dated 26th April 2013
in RFA No.1725/2005 and pass orders in
accordance with law."
4. Sri N.B.N. Swamy, the learned counsel for
the petitioner, submits that notwithstanding these
directions/observations, the Commissioner has not
taken any action. When queried, Sri N.B.N.Swamy
submits that the petitioner's grievance is with the
inter se arrangement between the developer and
owner of the property who have agreed that the
owner of the property shall be entitled to exclusive
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use of car parking which the petitioner asserts is
within the setback area.
5. Sri Anil Kumar Shetty, the learned
counsel for the second respondent, opposes the
petition on the ground that the petitioner, after he
has signed the Deed of Declaration acknowledging
that the owner would be entitled to car garage,
cannot allege violation of the sanctioned plan.
Sri.Pawan Kumar, who appears for
Sri.H.Devendrappa the learned standing counsel for
the first respondent - BBMP, has placed on record a
copy of the Communication dated 16.08.2022.
6. This communication reads that no action
can be taken as the sanction of the plan and
Occupancy and Commencement Certificates are
issued by the competent authority in the year 1989,
1990 and 1991. This conclusion is in the light of the
following circumstances stated in the
Communication:
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"1. The property in question originally
belongs to Smt. Pramila Grubb. She decided to put
up an apartment and applied for the sanction
plan and the plan was granted. The area
measuring 19.3 x 13.3 feet in the south eastern
corner of the building was retained without
demolishing even though other portions of the
building were demolished for construction of
apartment as per the sanctioned plan. The
building plan Sanctioned by the Bangalore City
Corporation in L.P. No.713/88-89 Dt: 09.08.1989
as per reference No.1 retained the garage portion
as it is in the sanctioned Plan.
2. The Commencement Certificate is issued
by Dy. of the by Director of Town Planning
Mahanagara Palike, Bangalore her Letter No.
LP.713/88-89 Dt: 02.01.1990 as per the
sanctioned plan the garage portion as retain as it
is.
3. The Occupancy certificate is issued by
the Dy. Director of Town Planning Mahanagara
Palike, Bangalore her Letter No. LP.713/88-89 Dt:
18.04.1991 as per the sanctioned plan the garage
portion as retain as it is in the plan after issuing
occupancy certificate.
In view of the above discussions, it is
hereby communicated to you made by this office
reveals that there is no encroachment in the
garage area and the garage portion is maintained
from the date of sanctioning of the building plan is
not at liberty to taken any action contrary to
sanction plan. Hence no action can be initiated
against the sanctioned plan, occupancy certificate
and commencement certificate is issued by
competent authority in accordance with the
sanction plan."
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7. This Court, given the nature of the
grievance and the opinion as now placed on record, is
of the considered view that further orders are not
required in this petition, but the disposal of this writ
petition will not foreclose any grievance as against
the aforesaid order.
The petition stands disposed of accordingly.
Sd/-
JUDGE
SA
ct:sr
