Karnataka High Court
Smt. Shakila S Shetty vs The Commissioner on 4 January, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
-1-
NC: 2024:KHC:404
WP No. 55716 of 2017
C/W WP No. 20546 of 2017
WP No. 47122 of 2017
WP No. 47406 of 2017
WP No. 48000 of 2017
WP No. 55717 of 2017
WP No. 55718 of 2017
WP No. 55719 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2024
BEFORE
R
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 55716 OF 2017 (LB-BMP)
C/W
WRIT PETITION NO. 20546 OF 2017 (LB-BMP)
WRIT PETITION NO. 47122 OF 2017 (LB-BMP)
WRIT PETITION NO. 47406 OF 2017 (LB-BMP)
WRIT PETITION NO. 48000 OF 2017 (LB-BMP)
WRIT PETITION NO. 55717 OF 2017 (LB-BMP)
WRIT PETITION NO. 55718 OF 2017 (LB-BMP)
WRIT PETITION NO. 55719 OF 2017 (LB-BMP)
IN W.P. NO. 55716/2017
BETWEEN:
M. CHANDRAKUMAR
S/O E MARUTHACHALAM
AGED ABOUT 59 YEARS
BY HIS POWER OF ATTORNEY HOLDER
SIDDAHANUMAPPA
Digitally signed
NO.8, 2ND A CROSS,
by
NARAYANAPPA NAGARABHAVI VILLAGE
LAKSHMAMMA BANGALORE 560072
Location: HIGH ...PETITIONER
COURT OF (BY SRI: MANIAN K B S., ADVOCATE)
KARNATAKA
AND:
1. THE COMMISSIONER
THE BRUHATH BANGALORE MAHANAGARA PALIKE
HUDSON CIRCLE
BENGALURU 560001
2. THE ASSISTANT EXECUTIVE ENGINEER
THE BRUHAT BANGALORE MAHANAGARA PALIKE(BBMP)
KENGERI SUB DIVISION, BENGALURU 560060
...RESPONDENTS
-2-
NC: 2024:KHC:404
WP No. 55716 of 2017
C/W WP No. 20546 of 2017
WP No. 47122 of 2017
WP No. 47406 of 2017
WP No. 48000 of 2017
WP No. 55717 of 2017
WP No. 55718 of 2017
WP No. 55719 of 2017
(BY SRI: AMIT DESHPANDE., ADVOCATE FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO GRANT A WRIT OF
CERTIORARI QUASHING THE IMPUGNED NOTICES DATED
04/09/2017 BEARING NO.AEE/KSD/PR/322/2017-18 (ANNEXURE-A)
ISSUED BY THE RESPONDENT.
IN W.P. NO. 20546/2017
BETWEEN:
1 . T J GIRISH
S/O LATE T S JAGADISH MURTHY
AGED ABOUT 47 YEARS
R/A NO.333, 2ND CROSS
GIRINAGAR 1ST PHASE
BENGALURU-560085
2 . MUKTHA SHARIFF
S/O LATE MOHAMMAD SHARIFF
AGED ABOUT 59 YEARS
R/A 543, BHEL II STAGE LAYOUT
PATTANAGERE SOUTH
RAJARAJESHWARI NAGAR
BENGALURU-560098
3 . SHYLAJA JAGADEESH
W/O SRI JAGADEESH
AGED ABOUT 50 YEARS
R/A NO.605, 3RD CROSS, 7TH MAIN
HMT LAYOUT, GANGANAGAR
BENGALURU-560032
4 . J M REKHA D/O M GOWDA
AGED ABOUT 44 YEARS
R/A NO.531, BHEL LAYOUT
PATTANAGERE SOUTH
RAJARAJESHWARI NAGAR
BENGALURU-560098
-3-
NC: 2024:KHC:404
WP No. 55716 of 2017
C/W WP No. 20546 of 2017
WP No. 47122 of 2017
WP No. 47406 of 2017
WP No. 48000 of 2017
WP No. 55717 of 2017
WP No. 55718 of 2017
WP No. 55719 of 2017
5 . JAYAMMA
W/O CHIKKIRAPPA
AGED ABOUT 69 YEARS
R/A 332, PATTANAGERE NORTH
RAJARAJESHWARI NAGAR
BENGALURU-560098
...PETITIONERS
(BY SRI: SARAVANA S. ADVOCATE )
AND
1. THE COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE
N R SQUARE, BANGALORE-560002
2. THE JOINT COMMISSIONER
RAJARAJESHWARI NAGAR RANGE
IDEAL HOME SOCIETY
RAJARAJESHWARI NAGAR
BENGALURU-560098
3. THE ASSISTANT EXECUTIVE ENGINEER
KENGERI SUB DIVISION
BBMP, NO.LIG 102, 2ND MAIN
KHB II PHASE, NEAR HYSALA CIRCLE
BENGALURU-560060
...RESPONDENTS
(BY SMT. CHAITRAVATHI. B.S., ADVOCATE FOR R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH ANN-L1 TO L5
NOTICES DTD. 18.3.2017 IN NOS 1) SAKAA/KEMUUV/ PR/922/2016-
17, 2) SAKAA/KEMUUV/PR/926/2016-17, 3) SAKAA/
KEMUUV/PR/923/2016-17, 4) SAKAA/KEMUUV/PR/928/2016-17, 5)
SAKAA/KEMUUV/PR/931/2016-17 AND THE FURTHER PROCEEDINGS
THEREON.
-4-
NC: 2024:KHC:404
WP No. 55716 of 2017
C/W WP No. 20546 of 2017
WP No. 47122 of 2017
WP No. 47406 of 2017
WP No. 48000 of 2017
WP No. 55717 of 2017
WP No. 55718 of 2017
WP No. 55719 of 2017
IN W.P. NO. 47122/2017
BETWEEN:
Y B SANTHOSH
S/O LATE Y N BALACHANDER
AGED ABOUT 43 YEARS,
RESIDENT OF NO.138,
1ST FLOOR, 4TH MAIN ROAD,
RAJAJINAGAR INDUSTRIAL TOWN
BANGALORE-560044
...PETITIONER
(BY SRI: MANIAN K B S., ADVOCATE)
AND:
1. THE COMMISSIONER
THE BRUHATH BANGALORE MAHANAGARA PALIKE
HUDSON CIRCLE, BENGALURU-560001
2. THE ASSISTANT EXECUTIVE ENGINEER
THE BRUHAT BANGALORE MAHANAGARA PALIKE
(BBMP) KENGERI SUB DIVISION,
BENGALURU-560 060
...RESPONDENTS
(BY SMT: RAKSHITHA D.J., ADVOCATE FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO GRANT A WRIT OF
CERTIORARI QUASHING THE IMPUGNED NOTICES DTD.4.9.2017
BEARING NO. AEE/KSD/PR/322/2017-18 VIDE ANNEX-A ISSUED BY
THE R-2.
IN W.P. NO. 47406/2017
BETWEEN:
SRI SAMPATH KUMAR
AGED ABOUT 56 YEARS
-5-
NC: 2024:KHC:404
WP No. 55716 of 2017
C/W WP No. 20546 of 2017
WP No. 47122 of 2017
WP No. 47406 of 2017
WP No. 48000 of 2017
WP No. 55717 of 2017
WP No. 55718 of 2017
WP No. 55719 of 2017
S/O SRI. SUBBAIAH SETTY,
NO.113, 1ST CROSS, 4TH STAGE,
BEML LAYOUT,
RAJARAJESHWARI NAGAR,
BENGALURU-560098
...PETITIONER
(BY SRI: VIVEK B.N., ADVOCATE)
AND:
1. THE BRUHAT BENGALURU MAHANAGAR PALIKE
HUDSON CIRCLE,
BENGALURU-560 001
REPRESENTED BY THE COMMISSIONER
2. THE ASSISTANT EXECUTIVE ENGINEER
THE BRUHAT BENGALURU MAHANAGARA PALIKE,
(BBMP), KENGERI SUB-DIVISION,
BENGALURU-560060
3. SRI. MIRLE VARADARAJU
AGED ABOUT 56 YEARS
S/O LATE BORE GOWDA
NO. 544, 5TH MAIN,
KENGERI SATELLITE TOWN,
BENGALURU-560060.
...RESPONDENTS
(BY SRI: SHARATH S. GOWDA., ADVOCATE FOR R3;
SMT.CHAITRAVATHI B.S., ADVOCATE FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI QUASHING THE ORDER DTD.4.9.2017
PASSED IN SKA/KUV/P.R./322/2017-18 BY THE R-2, THE ASSISTANT
EXECUTIVE ENGINEER, BBMP, VIDE ANNEX-K TO THE WRIT
PETITION AND ETC.
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NC: 2024:KHC:404
WP No. 55716 of 2017
C/W WP No. 20546 of 2017
WP No. 47122 of 2017
WP No. 47406 of 2017
WP No. 48000 of 2017
WP No. 55717 of 2017
WP No. 55718 of 2017
WP No. 55719 of 2017
IN W.P. NO. 48000/2017
BETWEEN:
SMT K N RAJESHWARI
W/O LATE B V PRABHAKARMURTHY
#678, 1ST C MAIN ROAD, 3RD BLOCK
3RD STAGE, 3RD PHASE
BANASHANKARI
BANGALORE 560085
...PETITIONER
(BY SRI: MANIAN K B S., ADVOCATE)
AND
1. THE COMMISSIONER
THE BRUHAT BANGALORE MAHANAGARA PALIKE
HUDSON CIRCLE
BENGALURU 560001
2. THE ASSISTANT EXECUTIVE ENGINEER
THE BRUHAT BANGALORE MAHANAGARA PALIKE
(BBMP) KENGERI SUB DIVISION
BENGALURU 560060
...RESPONDENTS
(BY SRI: PAWAN KUMAR., ADVOCATE FOR
SRI. H. DEVENDRAPPA., ADVOCATE FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO GRANT A WRIT OF
CERTIORARI QUASHING THE IMPUGNED NOTICES DATED 4.9.2017
BEARING NO. AEE/KSD/PR/322/2017-18: AT ANNEX-A ISSUED BY R-
2.
IN W.P. NO. 55717/2017
BETWEEN:
T. N. SHANTHA RAM RAO
SON OF LATE NARAYAN RAO ,
-7-
NC: 2024:KHC:404
WP No. 55716 of 2017
C/W WP No. 20546 of 2017
WP No. 47122 of 2017
WP No. 47406 of 2017
WP No. 48000 of 2017
WP No. 55717 of 2017
WP No. 55718 of 2017
WP No. 55719 of 2017
AGED ABOUT 70 YEARS
RESIDENT OF NO.7,
CHOWDAPPA LAYOUT
5TH MAIN, 11TH CROSS
BAPUJI NAGAR, MYSORE ROAD
BANGALORE 560026
...PETITIONER
(BY SRI: MANIAN K B S)
AND:
1. THE COMMISSIONER
THE BRUHATH BANGALORE MAHANAGARA PALIKE
HUDSON CIRCLE
BENGALURU 560001
2. THE ASSISTANT EXECUTIVE ENGINEER
THE BRUHAT BANGALORE MAHANAGARA PALIKE
PALIKE (BBMP) KENGERI SUB DIVISION
BENGALURU 560060
...RESPONDENTS
(BY SMT: CHAITRAVATHI B.S., ADVOCATE FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO GRANT A WRIT OF
CERTIORARI QUASHING THE IMPUGNED NOTICES DATED 4.9.2017
BEARING NO. AEE/KSD/PR/322/2017-18: AT ANNEX-A ISSUED BY R-
2.
IN W.P. NO. 55718/2017
BETWEEN:
KUSUMAKAR SHETTY
S/O MANJAYA SHETTY
AGED ABOUT 58 YEARS
NO.1764, 22ND CROSS,
-8-
NC: 2024:KHC:404
WP No. 55716 of 2017
C/W WP No. 20546 of 2017
WP No. 47122 of 2017
WP No. 47406 of 2017
WP No. 48000 of 2017
WP No. 55717 of 2017
WP No. 55718 of 2017
WP No. 55719 of 2017
GOVINDARAJNAGAR,
BANGALORE 560040
...PETITIONER
(BY SRI: MANIAN K B S., ADVOCATE)
AND:
1. THE COMMISSIONER
THE BRUHATH BANGALORE MAHANAGARA PALIKE
HUDSON CIRCLE
BENGALURU 560001
2. THE ASSISTANT EXECUTIVE ENGINEER
THE BRUHAT BANGALORE MAHANAGARA PALIKE
PALIKE (BBMP) KENGERI SUB DIVISION
BENGALURU 560060
3. SRI. MIRLE VARADARAJ
SON OF LATE BORE GOWDA,
AGED ABOUT 59 YEARS,
RESIDING AT NO.544, 5TH MAIN ROAD,
KENGERI SATELLITE TOWN,
BANGALORE -560 060
...RESPONDENTS
(BY SRI: PAWAN KUMAR., ADVOCATE FOR R1 & R2;
SRI. VENKATESH S. ARBATTI., ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO GRANT A WRIT OF
CERTIORARI QUASHING THE IMPUGNED NOTICE DATED 4.9.2017
BEARING NO. AEE/KSD/PR/322/2017-18: AT ANNEX-A ISSUED BY R-
2.
-9-
NC: 2024:KHC:404
WP No. 55716 of 2017
C/W WP No. 20546 of 2017
WP No. 47122 of 2017
WP No. 47406 of 2017
WP No. 48000 of 2017
WP No. 55717 of 2017
WP No. 55718 of 2017
WP No. 55719 of 2017
IN W.P. NO. 55719/2017
BETWEEN:
SMT. SHAKILA S. SHETTY,
W/O SUNIL SHETTY,
AGED ABOUT 62 YEARS,
#5/7, INNOVA RESIDENCY
HARIRAM ALLADAS LAYOUT,
NEAR SHOBHA HOSPITAL
VIJAYANAGAR, BANGALORE-560040.
...PETITIONER
(BY SRI: MANIAN K B S., ADVOCATE)
AND:
1. THE COMMISSIONER
THE BRUHATH BANGALORE MAHANAGARA PALIKE
HUDSON CIRCLE, BENGALURU 560001
2. THE ASSISTANT EXECUTIVE ENGINEER
THE BRUHAT BANGALORE MAHANAGARA PALIKE
PALIKE (BBMP) KENGERI SUB DIVISION
BENGALURU 560060
3. SRI. MIRLE VARADARAJ
SON OF LATE BORE GOWDA,
AGED ABOUT 59 YEARS,
RESIDING AT NO.544, 5TH MAIN ROAD,
KENGERI SATELLITE TOWN, BANGALORE -560 060
...RESPONDENTS
(BY SRI: PAWAN KUMAR., ADVOCATE FOR R1 & R2;
SRI. VENKATESH S. ARBATTI., ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO GRANT A WRIT OF
CERTIORARI QUASHING THE IMPUGNED NOTICE DATED 4.9.2017
BEARING NO. AEE/KSD/PR/322/2017-18: AT ANNEX-A ISSUED BY R-
2.
- 10 -
NC: 2024:KHC:404
WP No. 55716 of 2017
C/W WP No. 20546 of 2017
WP No. 47122 of 2017
WP No. 47406 of 2017
WP No. 48000 of 2017
WP No. 55717 of 2017
WP No. 55718 of 2017
WP No. 55719 of 2017
THESE WRIT PETITIONS COMING ON FOR ORDERS AND
HAVING BEEN RESERVED FOR ORDERS ON 23.11.2023, THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
ORDER
1. The petitioner in W.P.No.55716/2017 is before this
Court seeking for the following reliefs:
a. Grant a writ of certiorari quashing the impugned
notices dated 04/09/2017 bearing
No.AEE/KSD/PR/322/2017-18 (Annexure-A) issued
by the Respondent.
b. And pass such other orders as this Hon'ble court
deems fit and proper the interest of justice and
equity.
2. The petitioner in W.P. No.20546/2017 is before this
Court seeking for the following reliefs:
a. Quash Annexure-L1 to L5 Notices dated
18.03.2017 in Nos. 1) SAKAA/KEMUUV/PR/922/
2016-17, 2) SAKAA/ KEMUUV/PR/926/2016-17, 3)
SAKAA/ KEMUUV/ PR/923/2016-17, 4)
SAKAA/KEMUUV/PR/928/ 2016-17, 5)
SAKAA/KEMUUV/PR/931/2016-17 and the further
proceedings thereon and;
b. Pass such other orders as may be deemed
appropriate under the circumstances of the case, in
the ends of justice.
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NC: 2024:KHC:404
3. The petitioner in W.P. No.47122/2017 is before this
Court seeking for the following reliefs:
a. Grant a writ of certiorari quashing the impugned
notices dated 04/09/2017 bearing No.
AEE/KSD/PR/322/2017-18 (Annexure-A) issued by
the 2nd Respondent.
b. And pass such other orders as this Hon'ble Court
deems fit and proper in the interest of justice and
equity.
4. The petitioner in W.P. No.47406/2017 is before this
Court seeking for the following reliefs:
a. Issue a writ in the nature of certiorari quashing the
Order dated 04.09.2017 passed in
SKA/KUV/P.R./322/2017-18 by the R2, the
Assistant Executive Engineer, the BBMP at
Annexure-K to the writ petition.
b. Grant Costs.
c. Such other relief/s as this Hon'ble Court deems fit
to grant in the facts and circumstances of the case
and in the interest of justice and equity.
5. The petitioner in W.P. No.48000/2017 is before this
Court seeking for the following reliefs:
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NC: 2024:KHC:404
a. Grant a writ of certiorari quashing the impugned
notices dated 04/09/2017 bearing No.
AEE/KSD/PR/322/2017-18: Annexure-A issued by
the R2.
b. And pass such other orders as this Hon'ble Court
deems fit and proper in the interest of justice and
equity.
6. The petitioner in W.P. No.55717/2017 is before this
Court seeking for the following reliefs:
a. Grant a writ of certiorari quashing the impugned
notices dated 04/09/2017 bearing No.
AEE/KSD/PR/322/2017-18: Annexure-A issued by
the R2.
b. And pass such other orders as this Hon'ble Court
deems fit and proper in the interest of justice and
equity.
7. The petitioner in W.P. No.55718/2017 is before this
Court seeking for the following reliefs:
a. Grant a writ of certiorari quashing the impugned
notice dated 04/09/2017 bearing No.
AEE/KSD/PR/322/2017-18: Annexure-A issued by
the R2.
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NC: 2024:KHC:404
b. And pass such other orders as this Hon'ble Court
deems fit and proper in the interest of justice and
equity.
8. The petitioner in W.P. No.55719/2017 is before this
Court seeking for the following reliefs:
a. Grant a writ of certiorari quashing the impugned
notice dated 04/09/2017 bearing No.
AEE/KSD/PR/322/2017-18: Annexure-A issued by
the R2.
b. And pass such other orders as this Hon'ble Court
deems fit and proper in the interest of justice and
equity.
9. In each of the above matters, the petitioners claim to
be the owners and in possession of their respective
residential plots formed by REMCO (BHEL) Co-
operative Housing Society in the year 1992. Each of
the above petitioners have produced their respective
allotment letter, possession certificate issued by the
Society, copy of the sale deed registered with the
Sub-Registrar, katha certificate and tax paid receipt
issued by the local authority. The petitioners claim
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that they constructed a compound wall and a shed in
the property to secure the same from the
encroachers and trespassers.
10. The layout has been formed by the Society on the
land acquired by the State of Karnataka on behalf of
the Society. Certain land owners having challenged
the said acquisition, this Court set aside the said
acquisition on the ground that the same has not been
done in accordance with law. Considering that the
layout had been fully formed and allottees had
constructed their respective houses, the society
approached the land owners offered them additional
consideration in pursuance of which relinquishment
deeds were executed by such land owners in favour
of the Society, which includes the lands in which the
plots of the Petitioners is situate.
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NC: 2024:KHC:404
11. The contention of the petitioners is that taking
advantage of the above situation, certain persons
more particularly one Mirle Vardaraj and his relative
Manjunath colluded with certain land owners and got
executed documents purporting to transfer the lands
in their favour and on that basis, despite those lands
having been relinquished, those persons sought to
forcibly take possession of the sites of the
petitioners. In order to preserve and protect the
property, the petitioners and several others put up
construction of compound wall and a shed in their
respective plots to safeguard it from encroachment.
12. The said Mirle Vardaraj and Manjunath R being well
connected politically had in collusion with the
government officials got the katha issued in favour of
the allottees cancelled which was challenged by them
in the case of M/s.REMCO (BHEL) House Building
- 16 -
NC: 2024:KHC:404
Co-operative Society Ltd., and others vs. Bruhat
Bangalore Mahanagara Palike and others1 which
order was quashed vide judgment dated 13.02.2013.
Despite quashing, the ministerial act of the BBMP for
restoration of katha in favour of the petitioners has
not been completed. The plan sought to be
submitted by the petitioners for construction of their
residential houses in the sites were not accepted on
the ground that there is no katha in favour of the
petitioners. This was done with an intention to aid
and assist the said Mirle Vardaraj and others to usurp
the property of the petitioners which was vacant.
13. Since the petitioners were successful in putting up
compound wall and shed which was in occupation of
certain security guards, the said Mirle Vardaraj
prevailed upon the office of the Corporation to issue
1 W.P.No.21920/2010 & connected matters dated 13.02.2013
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NC: 2024:KHC:404
notice under Section 308 of the Karnataka Municipal
Corporation Act, 1976 (for short, 'KMC Act') on all
the allottees calling upon them to produce their
respective documents with an intention to take over
the said documents leaving the allottees without any
documents to make their claim. Therefore, the
petitioners are stated to have furnished photocopies.
14. Thereafter respondent No.2 - Assistant Executive
Engineer issued a Provisional Order under sub-
Section (1) of Section 321 of KMC Act and a notice
under sub-Section (2) of Section 321 of KMC Act on
15.12.2012 to all the allottees without application of
mind. Most of those orders are verbatim identical
contending that the allottees/petitioners had put up
the compound wall and a shed with AC sheet without
obtaining necessary licence from BBMP and as such
they were required to be demolished.
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15. The petitioners and other allottees approached this
Court challenging the said notices by filing
W.P.Nos.52406-422/2012 which was disposed by this
Court vide order dated 10.06.2013 holding that there
is no need for a party to seek licence from the BBMP
to put up a compound wall to protect the property.
This Court directed the petitioners to treat the
Provisional Order as a show cause notice and to file
their reply within 4 weeks.
16. The petitioners are stated to have replied to the said
show cause notice, no hearing was offered to the
petitioners and thereafter after four long years had
issued notices on 18.03.2017 referring to the order
dated 10.06.2013 passed in W.P.Nos.52406-
422/2012 calling upon the petitioners to submit
sanction/approval for construction of AC sheet
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building failing which the said construction would be
demolished.
17. The petitioners immediately replied to the same
calling upon the respondent to withdraw the said
notice and had challenged it before this Court in
W.P.Nos.13133-144/2017 and this Court vide its
order dated 05.07.2017 directed the petitioners to
appear before the authority and lead additional
evidence if they choose to do and thereafter, BBMP
was required to pass appropriate speaking orders
after providing an opportunity of hearing to the
petitioners and the complainants.
18. The petitioners are stated to have appeared before
respondent No.2 and submitted the documents. On
06.10.2017, respondent No.2 is stated to have
communicated the impugned order dated 04.09.2017
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holding that the construction which have been put up
by the petitioners of a AC sheet house was
unauthorized since there was no plan sanction
obtained and had indicated that further action would
be taken to demolish the said shed after obtaining
permission from Assistant Executive Engineer,
Kengeri Sub-Division under Section 462 of KMC Act.
It is challenging the same, the petitioners are before
this Court.
19. Sri.K.B.S.Manian, learned counsel who appears for
the petitioners in W.P.Nos.55716/2017, 47122/2017,
48000/2017, 55717/2017, 55718/2017 and
55719/2017 submits that:
19.1. The Provisional Order issued under sub-Section
(1) of Section 321 of KMC Act is without any
basis. There is no particular allegation or
- 21 -
NC: 2024:KHC:404
averment made as regards the violation alleged
to have been committed by the petitioners
inasmuch as even if the construction put up by
the petitioners is without a plan sanction, the
same could be regularized by issuing a plan
sanction on the petitioners applying for it.
19.2. The regularization cannot happen, only if the
construction put up is in violation of the
Building Bye-laws. So long as the construction
is in accordance with or in conformity with
Building Bye-laws, no demolition could take
place. The Corporation could at the most
impose some penalty and/or call upon such
persons to obtain a plan sanction.
19.3. His submission is that the respondent -
Corporation officials in collusion with Mirle
Vardaraj and others had sought to take
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possession of the properties belonging to the
petitioners and several others. The katha issued
in favour of the petitioners having been
cancelled and such cancellation order having
been quashed by this Court, the respondent
authorities did not reinstate the katha and on
that basis, denied acceptance of the plan
sanction submitted by the petitioners and all
these things being done by the said officers of
the Corporation in collusion with Mirle Vardaraj
and others, the petitioners had no option but to
put up construction of compound wall and AC
sheet shed so as to put up some persons in the
said premises to safeguard from encroachment.
19.4. The petitioners and other allottees were forced
and constrained to take such steps to safeguard
their properties since the Corporation officials
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were themselves colluding with the
encroachers. If at all the katha had been
reinstated and application for plan submitted by
the petitioners accepted and processed in
accordance with applicable Bye-laws, the
petitioners being law abiding citizens would
have complied with the same and the
petitioners would have constructed in
accordance with such sanctioned plans.
19.5. It is only on account of the illegal and unlawful
actions of the corporation and the persons who
were seeking to encroach the properties of the
petitioners that the petitioners were
constrained to take the above steps.
19.6. His submission is that even today the
petitioners are ready to furnish application for
sanction of plans for the construction which
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have been put up and the same could be
considered in accordance with the applicable
Building Bye-laws.
19.7. Apart from the above, he submits that in
pursuance of the order passed in
W.P.Nos.52406-422/2012 dated 10.06.2013
the Provisional Order being treated as a show
cause notice the respondents were required to
consider the objections submitted by the
petitioners and pass a reasoned order under
sub-Section (3) of Section 321 of KMC Act.
Instead of doing so, the respondents after a
period of nearly four years at the behest of
Mirle Vardaraj and others sought to contend
that the order has been passed under Section
462 of the KMC Act for demolition. Thus, he
submits that there is no order in actuality
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passed under sub-Section (3) of Section 321 of
KMC Act and without doing so, no demolition
order could have been passed.
19.8. The said demolition order also having been
challenged in W.P.Nos.13133-442/2017
wherein this Court directed the petitioners to
appear before the authority in continuation of
the notice dated 18.03.2017 and after hearing
the petitioners, necessary orders were to be
passed. This he submits would again imply that
the orders under sub-Section (3) of Section 321
of KMC Act ought to be passed, since without
such orders, the question of demolition order
being passed could not arise.
19.9. Relying on the above, he submits that the
officials of the Corporation have without
passing necessary orders under sub-Section (3)
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of Section 321 of KMC Act proceeded to hold
the construction to be illegal and have sought
to demolish the same. There is no finding given
as to in what manner the construction of the
petitioners violates the Building Bye-laws. The
petitioners are still in the dark about the same
and as such, are unable to answer the
allegation. Merely because there is no plan
sanction issued by the BBMP, the construction
does not become illegal so long as the
construction is in accordance with and complies
with the requirements of Building Bye-laws.
19.10. On the basis of the above submissions he
contends that the petition is to be allowed and
reliefs sought for granted.
20. Sri.S.Saravana, learned counsel for the petitioner in
W.P.No.20546/2017 and Sri.Abhinav Ramanand A.,
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learned counsel for the petitioner in
W.P.No.47406/2017 adopt the submissions of
Sri.K.B.S.Manian, learned counsel.
21. Sri. Amit Deshpande, learned counsel who appears
for BBMP in W.P.No.55716/2017 submits that:
21.1. It was required for the petitioners to obtain a
plan sanction. When no plan sanction is
obtained, the question of officials of the
Corporation detailing out the nature of
deviation in terms of setbacks or construction
would not arise. Once there is no plan sanction
issued, the construction put up would be illegal
requiring the Corporation to take necessary
action in relation thereto and it is for that
reason that the action is proposed to be taken.
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21.2. In regard to the orders passed by this Court in
W.P.Nos.52406-422/2012 dated 10.06.2013,
he submits that the notices were treated as
show cause notices, orders under sub-Section
(3) of Section 321 of KMC Act having already
been passed before that date, the submissions
made by the petitioners were considered and
the order of demolition passed. The order
passed under sub-section (3) Section 321 of
KMC Act earlier would enure to the benefit of
the Corporation and there was no requirement
to pass another order under sub-Section (3) of
Section 321 of KMC Act.
21.3. Insofar as the orders passed in W.P.Nos.13133-
144/2017 is concerned, he submits that the
order under Section 462 of the KMC Act, 1976
have not been quashed. Only an opportunity
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had been provided to the petitioners to place on
record such documents as they intend to
support their contention that the construction
put up is legal and legitimate since no such
document were placed on record, the
authorities went ahead with confirmation of the
earlier order and passed the impugned order
indicating that illegal construction would be
demolished.
21.4. There is no collusion between the officers of the
BBMP and Mirle Vardaraj or anyone else. The
authorities have taken such actions of their own
accord though on the basis of the complaint
filed by Mirle Varadaraj. The orders passed by
the Corporation authorities are in accordance
with law and they cannot be challenged in the
manner as done by the petitioners. Even if no
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complaint had been filed by Mirle Varadaraj,
there being no plan sanction in favour of the
petitioners the illegality being clear and
apparent, the action taken by the Corporation
authorities is proper and correct.
22. Sri.Sharath S.Gowda, learned counsel for respondent
No.3 in W.P.No.47406/2017 submits that the land
owners have executed necessary sale deeds in
favour of Mirle Vardaraj and it is on that land that
the petitioners have put up the construction and it is
as regards this unauthorised and illegal construction
and encroachment made by the petitioners that
complaints were filed by Mirle Vardaraj and others
with the Corporation authorities who have acted on
the said complaint in accordance with law and no
fault can be found with either respondent No.3 in
W.P.No.47406/2017 or the officers of the
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Corporation. On this submissions, he submits that
the above petitions are required to be dismissed.
23. Sri.Chaitravathi B.S., learned counsel for
respondents No.1 to 3 in W.P.No.20546/2017 and for
respondents No.1 and 2 in W.P.No.47406/2017,
Sri.Rakshitha D.J., learned counsel for respondents
No.1 and 2 in W.P.No.47122/2017,
Sri.H.Devendrappa, learned counsel for respondents
No.1 and 2 in W.P.No.48000/2017 and Sri.Pavan
Kumar, learned counsel for respondents No.1 and 2
in W.P.No.55718/2017 and in W.P.No.55719/2017
adopt the submissions of Sri.Amit Deshpande,
learned counsel.
24. Heard the learned counsel for the parties and
perused the papers.
25. The points that would arise for consideration are:
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1) Whether the notices under Section 308 of
KMC Act could be issued by the Corporation
calling upon a private citizen to furnish
documents like plan sanction, katha
certificate, sale deed, etc.?
2) Whether the Provisional Order under sub-
Section (1) of Section 321 of KMC Act could
be passed merely stating that the
construction is illegal without detailing the
illegality?
3) Whether once the Confirmatory order under
sub-Section (3) of Section 321 of KMC Act
had been quashed vide order dated
10.06.2013 in W.P.No.52406-422/2012
without passing another order under sub-
section (3) of Section 321 of KMC Act, could
the Corporation officials pass demolition
order under Section 462 of the Municipal
Corporation Act, 1976?
4) Whether the impugned order at Annexure-A
could have been passed without referring to
the alleged violations and/or deviations of
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the Building Bye-laws holding the
construction put up by the petitioners to be
illegal?
5) What order?
26. I answer the above points as under
27. Sections 308, 321, 462 of the Municipal Corporation
Act, reads as under:
Section 308 of KMC Act:
308.Power of Commissioner to require alteration
of work.- (1) If the Commissioner finds that
the work,-
(a) is otherwise than in accordance with the
plans or specifications which have been
approved, or
(b) contravenes any of the provisions of this
Act or any rule, bye-law, order or
declaration made under this Act, he may
by notice require the owner of the building
within a period state either,-
(i) to show cause why such alterations should
not be made, or
(ii) to make such alterations as may be
specified in the said notice with the object
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of bringing the work into conformity with
the said plans, specifications or provisions.
(2) If the owner does not show cause as
aforesaid he shall be bound to make the
alterations specified in such notice.
(3) If the owner shows cause as aforesaid the
Commissioner shall by an order cancel the
notice issued under sub-section (1) or
confirm the same subject to such
modifications as he may think fit
Section 321 of KMC Act:
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
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(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.
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(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.
Section 462 of KMC Act:
462.Time for complying with order and
power to enforce in default.-
(1) Whenever by any notice, requisition or
order made under this Act or under any
rule, bye-law or regulation made under it,
any person is required to execute any
work, or to take any measures or do
anything, a reasonable time shall be
named in such notice, requisition or order
within which the work shall be executed,
the measures taken, or the thing done.
(2) If such notice, requisition or order is not
complied with within the time so named,
then whether or not a fine is provided for
such default and whether or not the
person in default, is liable to punishment
or has been prosecuted or sentenced to
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any punishment for such default, the
Commissioner may cause such work to be
executed, or may take any measure or do
anything which may, in his opinion, be
necessary for giving due effect to the
notice. requisition or order as aforesaid.
(3)If no penalty has been specially provided
in this Act for failure to comply with such
notice, the said person shall, on
conviction, be punished with fine not
exceeding fifty rupees for such offence."
28. Answer to Point No.1: Whether the notices
under Section 308 of KMC Act could be issued
by the Corporation calling upon a private citizen
to furnish documents like plan sanction, katha
certificate, sale deed, etc.?
28.1. This Court has dealt with the said question in
the case of Smt.Puttathyamma vs. The
Karnataka Appellate Tribunal and others2
and has come to a conclusion that the
Corporation who is to be in custody and is the
custodian of the plan sanction, katha certificate,
tax paid receipts, etc., issued by the
Corporation itself though by a different
2 2023:KHC:10034 : W.P.No.59522/2016
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department than that exercising powers under
Section 321 of the Municipal Corporations Act
cannot seek for such documents. This Court has
also issued general directions as regards
making available documents for the officers
exercising penal powers under BBMP Act, 2020.
28.2. That decision is though prospective, the same
may not be completely applicable to the
present case since the action was taken way
back in the year 2012 and thereafter when the
digitization of BBMP was not even commenced.
28.3. Thus in respect of old matters, when the
digitization had not commenced and were plan
sanction, katha certificate, katha extract, tax
paid receipts were being issued in physical
format, the officer exercising penal powers
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under the Karnataka Municipal Corporations Act
could issue necessary notices calling upon the
alleged offender to produce the documents
sought for in the said notice. Be that as it may,
these documents would still have to be verified
from the documents available with the
Corporation since records would have to be
maintained by the Corporation as regards any
plan sanction issued, katha certificate issued,
assessment order made, special notices issued,
receipts for payment of tax issued, etc.
28.4. In view of the above, I answer Point No.1 by
holding that the Corporation Officers can seek
for providing of documents in old matters which
are not digitised. However, as regards the
documents which are digitized and available
with the Corporation and any other
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instrumentality of the State, suitable
mechanism should be made available to such
officers to secure the documents not only for
the purpose of considering the same but for
verification of the documents with the
documents if any furnished by the noticee.
29. Answer to Point No.2: Whether the Provisional
Order under sub-Section (1) of Section 321 of
KMC Act could be passed merely stating that
the construction is illegal without detailing the
illegality?
29.1. The Provisional Order under sub-Section (1) of
Section 321 of the KMC Act and now under sub-
Section (1) of Section 248 of BBMP Act, 2020
are serious matters which relate to and deal
with demolition of a property on account of
illegal and unauthorised construction or
construction carried out in violation of the
sanctioned plan, Building Bye-Laws etc.
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29.2. The fact that the action under sub-section (1) of
Section 321 of KMC Act and under sub-section
(1) of Section 248 of BBMP Act, 2020 is treated
as a Provisional Order would indicate the value
attached to such an action to be an order and
not a mere a notice. Thus, whenever a
Provisional Order is to be passed, the
Provisional Order should contain all the relevant
details and should have been so passed after
following the applicable law relating to passing
an order, though albeit a provisional one.
29.3. It would be required for the officer passing a
Provisional Order to clearly and categorically
after inspection of the building in question state
the permitted construction in terms of the
sanctioned plan/Building Bye-Laws and the
violations thereof in terms of setback, floor area
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ratio, height of the building, use for which the
property has been put to and such other factor
which according to the said officer is in violation
of the sanctioned plan/Building Bye-Laws.
29.4. The Provisional Order should contain the details
of such violation vis-à-vis both the sanction
plan if issued as also the Building Bye-laws
even if a sanction plan has been issued or not.
This would aid and assist the Court to also
ascertain if the sanctioned plan was so
sanctioned in accordance with the Building Bye-
laws or not.
29.5. Thus I answer point no 2 by holding that it is
required that all details as aforesaid be
presented in a comparative tabulated manner
clearly showing the comparison between the
building Bye-laws, sanctioned plan and the
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actual state of affairs, understandable by the
noticee and calling upon the noticee to reply to
each and every allegations made against the
noticee in the Provisional Order, merely stating
that the construction is illegal without detailing
the illegality in sufficient and particular detail
would not be in compliance with the requirements
of subsection (1) of 321 of the Municipal
Corporations Act 1976 which was applicable to
Bangalore or that under the present sub-section
(1) of section 248 of the BBMP Act 2020.
30. Answer to Point No.3: Whether once the
Confirmatory Order under sub-Section (3) of
Section 321 of KMC Act had been quashed vide
order dated 10.06.2013 in W.P.No.52406-
422/2012 without passing another order under
sub-section (3) of Section 321 of KMC Act,
could the Corporation officials pass demolition
order under Section 462 of the Municipal
Corporation Act, 1976?
30.1. In the present matter vide order dated
10.06.2013 in W.P.Nos.52406-422/2012, this
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Court treated the Provisional Order as a show
cause notice even though by that time the
Confirmatory Order under sub-Section (3) of
Section 321 of KMC Act had already been
passed. Once the Provisional Order was treated
as a show cause notice permitting the
petitioners to reply to the same, it could not be
contended by the respondents that the
Confirmatory Order has not been quashed
and/or that the Confirmatory Order still stands
since in my considered opinion once a fresh
order was required to be passed on the basis of
a reply to the Provisional Order, the earlier
Confirmatory Order under sub-Section (3) of
Section 321 of KMC Act would not stand and a
fresh Confirmatory Order under sub-Section (3)
of Section 321 of KMC Act had to be passed.
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30.2. Without doing so, the question of issuing a
notice under Section 462 of the Act and/or
demolition work being carried out would not at
all arise. This is also clear from the order
passed in W.P.Nos.13133-144/2017 wherein a
demolition order under Section 462 of the Act
was challenged, this Court directed the officer
of the Corporation to pass fresh orders after
hearing the petitioners which only relates back
to a Confirmatory Order under sub-Section (3)
of Section 321 of KMC Act and not orders under
Section 462 of KMC Act.
30.3. Thus, I answer Point No.3 by holding that in the
present case a Confirmatory Order under sub-
Section (3) of Section 321 of KMC Act is
deemed to have been quashed by order dated
10.06.2013 passed by this Court in
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W.P.Nos.52406-422/2012 and that a fresh
Confirmatory Order under sub-Section (3) of
Section 321 of KMC Act was required to be
passed after providing an opportunity of
hearing to the petitioners. The corporation
authorities cannot negate the directions issued
by this court and make the opportunity
provided to the petitioners into an empty
formality by confirming the order already
passed, in other words a fresh order was to be
passed after considering all the grounds urged
by the petitioners.
31. Answer to Point No.4: Whether the impugned
order at Annexure-A could have been passed
without referring to the alleged violations
and/or deviations of the Building bye-laws
holding the construction put up by the
petitioners to be illegal?
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31.1. In the present case, the allegation made
against the petitioners is that without applying
for and obtaining a plan sanction, construction
have been put up. Therefore, the same is illegal
requiring its demolition.
31.2. The contention of the petitioners is that the
officers of the Corporation had colluded with
Mirle Vardaraj and Manjunath.R and it is on
account of such collusion that the application
which was proposed to be submitted by the
petitioners for sanction of plan was not
accepted by the office of the Corporation.
Infact, the Corporation Officers were acted at
the behest of Mirle Vardaraj and Manjunath R
to see to it that the land continues to be vacant
to enable easy encroachment by Mirle Vardaraj,
Manjunath and others. It is in order to protect
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the interest of the petitioners, the petitioners
put up construction of a compound wall and a
shed containing with a roof of asbestos sheets.
31.3. This Court having held in W.P.No.52406-
422/2012 that construction of a compound wall
does not require any building licence, the only
issue which remained was of the small
house/shed which was constructed. This house
according to Sri.K.B.S.Manian, learned counsel
appearing for few of the petitioners does not
violate the Building Bye-laws, complies with all
the requirements thereof and was required to
be constructed only to protect the interest of
the petitioners.
31.4. At first blush, if the submission of
Sri.K.B.S.Manian, learned counsel is accepted,
it would mean that anyone could contend that
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the construction was put up in an emergency to
protect the property and as such, any
construction without permission or sanction
plan would have to be treated as a legal
construction, which will be antithesis to the
Building Bye-laws. However, on the deeper
consideration of the matter, it can be seen that
the purpose of the Building Bye-laws and plan
being sanctioned in pursuance thereof is to see
to it that the plan is sanctioned as per the
Building Bye-laws, the construction is carried
out in terms of the Sanctioned plan, thus, in
terms of the Building Bye-laws and on
completion thereof, occupancy certificate is
issued.
31.5. Thus, the whole effort made is to see to it that
the Building Bye-laws are complied with and
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there is no violation of the Building Bye-laws.
The sanctioned plan being issued in furtherance
of the Building Bye-laws.
31.6. Essentially when one were to contend that the
construction is illegal, unauthorised or violative
of the sanctioned plan, what essentially one
means is that the construction is in violation of
the Building Bye-laws since the sanction plan is
required to be issued in conformity with the
Building Bye-laws. To put it differently if the
construction were to comply with the Building
Bye-laws but the construction were to be
carried out without obtaining a sanctioned plan,
it cannot be said that the construction is in
violation of the Building Bye-laws. However, it
could be said that the construction is illegal
since no sanction plan has been obtained.
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31.7. It is a balance which is required to be drawn in
this regard requiring an owner of the property
to approach appropriate authority for issuance
of a sanction plan, building licence, construction
in accordance thereto and thereafter make
payment of taxes for the built-up area as per
the applicable rules. There being several
connotations and actions relating to such
construction, I am of the considered opinion
that submission of Sri.K.B.S.Manian, learned
counsel appearing for few of the petitioners
cannot be accepted that so long as the building
which has been constructed is in conformity
with the Building Bye-laws, no notice could be
issued and if any notice has to be issued, the
same would have to indicate the violation of the
Building Bye-laws.
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31.8. One of the requirements of the Building Bye-
laws is that the building sanction plan or a
licence is required to be obtained. If this were
not to be obtained that itself is in violation of
the Building Bye-laws. The other aspects of
setback, FAR violation coverage violation etc.,
being required to be considered later.
31.8.1. In terms of Section 321 (1)(i)(a) of KMC
Act if a construction or reconstruction of
any building has been commenced without
obtaining Commissioner's 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
31.8.2. in terms of Section 321 (1)(i)(b) of KMC
Act, such construction or reconstruction of
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building has been carried on or has been
completed otherwise than in accordance
with plans or particulars on which such
permission or order was based; or
31.8.3. in terms of Section 321 (1)(i)(c) of KMC
Act, construction or reconstruction of any
building is being carried on or has been
completed in breach of any provision of
the Act or any rule or bye-law made under
the Act or of any direction or requisition
lawfully given or made under the Act or
such rules and bye-laws,
31.9. then, a Provisional Order could be made under
sub-section (1) of Section 321 of KMC Act.
Thus, it is not only where a construction or
reconstruction has been made without a plan
sanction in violation of the Act or Building Bye-
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laws. But it is commenced without obtaining the
permission of the Commissioner or contrary to
the permission granted by the Commissioner
that a Provisional Order under sub-Section (1)
of Section 321 of KMC Act can be passed.
31.10. Thus, it would not be open for Sri.K.B.S.Manian,
learned counsel for few of the petitioners to
contend that it is only if there is a violation of
the Building Bye-laws that a notice could be
issued.
31.11. Thus in my considered opinion in terms of
Section 321 (1)(i)(a) of KMC Act, a notice could
also be issued where a construction or
reconstruction has been commenced without
obtaining the commissioner's permission.
Having said so, as already observed, the net
effect of the implementation of the provision of
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Section 321 of KMC Act is to ensure that the
Building Bye-laws are complied with by the
person putting up construction. Thus, I am of
the further considered opinion that even though
a notice under Section 321 (1)(i)(a) of KMC Act
could be issued while issuing such notice in
terms of Section 321 (1)(i)(c) of KMC Act, a
notice would have to detail out apart from the
construction being carried out without any
sanction, the violation if any of the Act, rule or
bye-laws made under the Act which would
include the Building Bye-laws and as such, the
said notice would have to indicate the violation
made by the construction under progress or
already completed of the setbacks FAR/FSI,
floor coverage, use of the building, etc. This
being in order to ascertain if the construction
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can be saved if it is in accordance with the
Building Bye-laws by directing the violator to
apply for such building sanction in accordance
with the building bye-laws applicable to the
property.
31.12. In the event the construction being in
accordance with the building bye-laws, a
sanction of plan in accordance with the Building
bye-laws would safeguard the property.
However, if the construction is not in
accordance with the Building Bye-laws then on
a plan being sanctioned necessary directions
could be issued to demolish the portion of the
building which is in violation of the building
bye-laws so as to bring it in conformity with
such building bye-laws.
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31.13. More often than not these violations occurring
over a small plots which have been purchased
by individual citizens by making payment of
huge amount of money from their own personal
funds and sometimes by borrowing funds. Since
there is no particular violation of the building
bye-laws as such, I am of the considered
opinion that whenever authorities were to pass
orders under sub-section (3) of Section 321 of
KMC Act and now sub-section (3) of section 248
of BBMP Act, 2020 erstwhile Section 462 of
KMC Act and now Section 356 of BBMP Act
2020, it would be required for such authorities
to look into and pass necessary orders after
taking into consideration if there is any
violation of the Building bye-laws and not direct
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demolition only on account of building sanction
not having obtained.
31.14. Hence, I answer point No.4 by holding that the
impugned order at Annexure-A could not have
been passed merely on account of there being
no plan sanction without referring to and
considering if there is any violation or deviation
from Building bye-laws. In the event of there
being no violation or deviation from the
Building Bye-laws, the respondent authorities
could after collecting necessary fees issue
necessary building plans/sanction plan to
enable the regularization of the said building
directing to make payment of property tax
along with due penalty from the date on which
the construction was made without obtaining
the plan sanction.
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32. Answer to Point No.5: What order:
32.1. In view of my answers to the above questions,
in the present matter, the only allegation
against the petitioners being that the
construction having been carried out without a
plan sanction and a confirmatory order passed
thereon without considering the submission of
the petitioners that the construction is in
accordance with the Building Bye-laws, I am of
the considered opinion that the orders passed
under sub-section (3) of Section 321 of KMC
Act in all the above matters would be required
to be quashed, remitting the matter back to the
concerned authority to inspect the property in
question to ascertain if the construction is in
accordance with the Building Bye-laws or not. If
it is, to consider the application made by the
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petitioners for issuance of plan sanction and
grant it in accordance with the law.
32.2. There being serious allegations of collusion
between the officers of the Corporation and
Mirle Vardaraj and Manjunath and others, the
Chief Commissioner would also have to institute
necessary enquiry into the same to ascertain
the veracity thereof. Since even though Mirle
Vardaraj and Manjunath and others may or
may not have a valid claim over the property,
the officers of the Corporation cannot act
contrary to the applicable law at the behest of
the private party.
32.3. The Corporation and its officers would have to
strictly comply with the principles enshrined in
Article 14 of the Constitution of India and treat
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everyone equally and not to discriminate
against the other on the basis of the complaint.
32.4. The Officers of the corporation or the
corporation itself cannot be treated as a pawn
or a stooge of private parties and act on their
behalf. A statutory organization like the BBMP
has been established to serve the interests of
the citizens in general and not a few powerful
persons. The corporation officials are required
to and are advised to act in accordance with
law, failing which the law will have to take
necessary steps to bring such officers in
conformity with law.
32.5. In view of above discussions, I pass the
following:
ORDER
i) The Writ petitions are allowed.
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ii) In W.P.No.55716/2017, the order dated
04.09.2017 passed by respondent No.2
vide Annexure-A is quashed.
iii) In W.P.No.20546/2017, the order dated
18.03.2017 passed by respondent No.3
vide Annexures-L1 to L5 is hereby
quashed.
iv) In W.P.No.47122/2017, the order/notice
dated 04.09.2017 passed by respondent
No.2 vide Annexure-A is hereby quashed.
v) In W.P.No.47406/2017, the order/notice
dated 04.09.2017 passed by respondent
No.2 vide Annexure-K is hereby quashed.
vi) In W.P.No.48000/2017, the order/notice
dated 04.09.2017 passed by respondent
No.2 vide Annexure-A is hereby quashed.
vii) In W.P.No.55717/2017, the order/notice
dated 04.09.2017 passed by respondent
No.2 vide Annexure-A is hereby quashed.
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viii) In W.P.No.55718/2017, the order/notice
dated 04.09.2017 passed by respondent
No.2 vide Annexure-A is hereby quashed.
ix) In W.P.No.55719/2017, the order/notice
dated 04.09.2017 passed by respondent
No.2 vide Annexure-A is hereby quashed.
x) The matters are remitted to respondent
No.1 for fresh consideration from the
stage of provisional order issued under
subsection (1) of Section 321 and show
cause notice under subsection (2) of
section 321.
xi) The petitioners are also permitted to apply
for plan sanction in terms of the
applicable Building Bye-laws and the
construction put up thereon, which shall
be considered by the officers of the
Corporation strictly in accordance with
building Bye-laws and if the application for
plan sanction complies with the building
Bye-laws and all other requirements to
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sanction the same within a period of 30
days thereafter.
xii) It is only thereafter that concerned
respondent shall consider the submission
made by the petitioners in terms of the
observations made hereinabove including
the aspect of whether a plan sanction can
be granted or not and pass necessary
orders under sub-section (3) of Section
xiii) Enquiry report in terms of para 32.2 to be
filed by Chief Commissioner respondent
No.1 within a period of 90 days from
today.
xiv) Though the above matter is disposed for
reporting compliance relist on 12.04.2024.
Sd/-
JUDGE
PRS
