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Karnataka High Court
Sri Sushil Kumar vs Bruhat Bangalore Mahanagara Palike on 1 December, 2025
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WA No. 29 of 2015
Reserved on : 08.10.2025
Pronounced on : 01.12.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1st DAY OF DECEMBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE JAYANT BANERJI
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT APPEAL No. 29 OF 2015 (LB-BMP)
BETWEEN:
1. SRI SUSHIL KUMAR
S/O. UTTAM CHAND DHARIWAL,
AGED ABOUT 42 YEARS,
No.54/1, GROUND FLOOR,
BASAVAPPA ROAD,
SHANTINAGAR,
BANGALORE 560027,
AND ALSO AT No.8/1, 2ND CROSS,
Digitally signed
SWATI ROAD, (LAKSHMI ROAD),
by VALLI SHANTHINAGAR, BANGALORE 560027.
MARIMUTHU
Location: HIGH
COURT OF 2. SMT. DIMPLE KUMARI,
KARNATAKA W/O SUSHIL KUMAR,
AGED ABOUT 34 YEARS,
No.54/1, GROUND FLOOR,
BASAVAPPA ROAD, SHANTINAGAR,
BANGALORE 560027,
AND ALSO AT No.8/1, 2ND CROSS,
SWATI ROAD, (LAKSHMI ROAD),
SHANTHINAGAR, BANGALORE 560027.
...APPELLANTS
(BY SRI PARAS JAIN, ADVOCATE)
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WA No. 29 of 2015
AND:
1. BRUHAT BANGALORE MAHANAGARA PALIKE,
N.R SQUARE,
BANGALORE CITY CORPORATION OFFICES,
BANGALORE 560002,
REPRESENTED BY ITS COMMISSIONER.
2. THE ASSISTANT EXECUTIVE ENGINEER,
SHANTHINAGAR SUB DIVISION,
WARD No.117, BBMP,
7TH FLOOR, P.U BUILDING,
BBMP, M.G. ROAD,
BANGALORE 560001.
3. THE ASSISTANT ENGINEER,
SHANTHINAGAR SUB DIVISION,
WARD No.117, BBMP,
7TH FLOOR, P.U BUILDING,
BBMP, M.G. ROAD,
BANGALORE 560001.
4. SRI KAMLESH KUMAR,
S/O. GHEESULAL,
AGED ABOUT 32 YEARS,
No.303/304, 3RD FLOOR,
SHREE APARTMENTS,
No.6/13, KRISHNA ROAD CROSS,
BASAVANAGUDI,
BANGALORE 560004.
...RESPONDENTS
(BY SRI B.S. SATYANAND, ADVOCATE FOR R1 TO R3;
SRI P.D. SURANA, ADVOCATE FOR R4)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION 29795/14 DATED
19/11/14.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY,
K.V. ARAVIND, J., DELIVERED THE FOLLOWING:-
CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI
and
HON'BLE MR. JUSTICE K. V. ARAVIND
C.A.V. JUDGMENT
(PER: HON'BLE MR. JUSTICE K.V. ARAVIND)
Heard Sri Paras Jain, learned counsel for the appellants;
Sri B. S. Satyanand, learned counsel for respondent Nos.1 to 3;
and Sri P. D. Surana, learned counsel for respondent No.4.
2. The appellants are the owners of the immovable property
bearing No. 8/1, II Cross, Swasti Road (Lakshmi Road Cross),
Shanthi Nagar, Bengaluru. Respondent No.4 is the owner of the
adjacent property bearing No.8/2. The appellants commenced
construction of a building after obtaining sanction of the
building plan from respondent Nos.1 to 3. Respondent No.4
submitted a representation alleging that the appellants had
violated the sanctioned plan. When respondent Nos.1 to 3
failed to take action, W.P. No.4972/2012 was filed before this
Court seeking a direction to the Bruhat Bengaluru Mahanagara
Palike1 to initiate action for removal of the alleged illegal
construction. The violation alleged pertained to the construction
of additional floors beyond the sanctioned plan. This Court,
BBMP
while disposing of W.P. No.4972/2012, directed the BBMP to
initiate action for removal of the unauthorized construction. In
compliance, the BBMP issued a notice under Section 321 of the
Karnataka Municipal Corporations Act, 19762, calling upon the
appellants to remove the illegal construction. Thereafter, a final
order of demolition came to be passed.
2.1 The appellants preferred Appeal No.1344/2012 before the
Karnataka Appellate Tribunal (KAT). As the appellants
continued the construction in violation of the sanctioned plan,
respondent No.4 filed W.P. No.3876/2013 before this Court
seeking directions to the BBMP to take appropriate action. This
Court directed the KAT to dispose of the pending appeal within
a period of two months. The KAT, by its order dated
04.03.2014, set aside the order confirming demolition and
remitted the matter to the BBMP for fresh consideration. After
remand, a notice under Section 321(1) of the KMC Act, was
issued, and an order of demolition dated 21.02.2014 came to
be passed.
2.2 The said orders were challenged by the appellants before
the KAT in Appeal No.285/2014, wherein an order of status quo
KMC Act
was granted. During the pendency of the said appeal,
respondent No.4 filed W.P. No.29795/2014 before this Court.
The learned Single Judge, during the pendency of the writ
petition, issued a series of directions, including a direction for
inspection and submission of a report regarding the alleged
violations.
2.3 Upon consideration of the reports submitted by the BBMP,
the learned Single Judge recorded a finding that the violation of
the sanctioned plan by the appellants stood established. The
learned Single Judge also took note of the pendency of Appeal
No.285/2014 before the KAT. It was further held that the
appellants had deviated from the sanctioned plan by failing to
leave the required setbacks and by constructing the third and
fourth floors without sanction. Under the impugned order, the
learned Single Judge directed the appellants to bring the
building in conformity with the sanctioned plan within one
month and to report compliance to respondent Nos.1 to 3, who
were directed to verify whether the construction was brought in
accordance with the sanctioned plan. The learned Single Judge
further directed the BBMP to demolish the building in the event
the deviations were not rectified. While issuing the aforesaid
directions, the learned Single Judge also took note of the order
of status quo passed by the KAT, which was in operation.
3. Sri Paras Jain, learned counsel for the appellants, submits
that respondent No.4 had no locus standi to maintain the writ
petition before this Court, in which the impugned directions
came to be issued. It is contended that, as the petitioner lacked
locus standi, the directions issued by the learned Single Judge
in the said writ petition are not sustainable in law. Learned
counsel further submits that the appellants, being aggrieved,
have preferred Appeal No.285/2014 before the KAT, wherein an
order of status quo was granted. When the appeal against the
proceedings initiated by the BBMP on the same cause of action
is pending consideration, the writ petition at the instance of
respondent No.4 was not maintainable.
3.1 It is further submitted that the learned Single Judge,
while passing the impugned order, has overlooked the
pendency of the proceedings before the KAT. It is contended
that, as a consequence of the impugned order, the pending
appeal before the KAT has been rendered infructuous, thereby
depriving the appellants of their statutory right of appeal under
the provisions of the KMC Act.
3.2 Learned counsel further submits that the deviation, if
any, is capable of being considered for regularization. It is
contended that the question as to whether the deviation is
permissible, and the extent thereof, are matters of fact to be
determined by the Appellate Authority. Learned counsel further
submits that the deviation, if any, falls within the permissible
limits for regularization, and therefore, the direction in the
impugned order directing demolition and removal of the alleged
excess construction is unsustainable in law.
4. Per contra, Sri B. S. Satyanand, learned counsel for
respondent Nos.1 to 3, submits that the sanctioned plan was
approved only for the ground and first floors, whereas the
appellants have unauthorisedly constructed the third and fourth
floors. It is submitted that, during the course of enquiry and
inspection, the appellants themselves admitted the deviations.
As the fact of deviation is not in dispute, the writ petition was
maintainable. Learned counsel further submits that the writ
petition was rightly entertained by the learned Single Judge, as
sufficient material was available on record to establish the said
deviations.
5. Sri P. D. Surana, learned counsel for respondent No.4,
submits that respondent No.4 is the owner of the adjacent
property and that the deviations from the sanctioned plan have
adversely affected the rights of respondent No.4. Hence,
respondent No.4 has the requisite locus standi to maintain the
writ petition. Learned counsel further submits that, as the
deviations in respect of setbacks and construction of additional
floors have been admitted by the appellants, there was no
necessity for any further fact-finding by the Tribunal in the
pending appeal. It is therefore contended that the writ petition
was rightly entertained by the learned Single Judge. Learned
counsel further submits that the existence and extent of
deviation are not in dispute and stand admitted. It is further
submitted that the deviations found are beyond the permissible
limits for regularization, and therefore, the appellants are not
entitled to seek such regularization.
6. Having considered the submissions of the learned counsel
for the parties, the point that arises for consideration is as
follows:
"Whether the order passed by the learned Single
Judge warrants interference by this Court?"
The answer to the above point, in our considered view, is
in the affirmative, for the following reasons.
7. Respondent No.4 filed a complaint alleging that the
appellants had constructed the building in violation of the
sanctioned plan. As the authorities failed to take action, a writ
petition came to be filed and directions were issued by this
Court, pursuant to which the BBMP initiated proceedings under
Section 321 of the KMC Act. The said proceedings culminated in
an order directing demolition of the construction put up in
excess of the sanctioned plan. The appellants questioned the
said order before the KAT in Appeal No.1344/2012. The
Tribunal, while entertaining the appeal, set aside the order of
demolition and remanded the matter for fresh consideration.
Pursuant to the order of remand, the BBMP once again issued
notice under Section 321 of the Act and passed a fresh order of
demolition. The said order was again challenged by the
appellants before the Tribunal in Appeal No.285/2014, wherein
an order of status quo was granted.
7.1 When the authorities had already initiated proceedings
under the provisions of the KMC Act on the basis of the
complaint made by respondent No.4, and when the matter was
sub judice before the Tribunal, it was not open to respondent
No.4 to invoke the writ jurisdiction of this Court. In fact, the
Tribunal, after considering the matter, had directed that status
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quo be maintained. When the authorities had acted in
accordance with law and passed an order of demolition, and
such order was under challenge before the Tribunal with an
interim order of status quo in force, it was always open to
respondent No.4 to participate in those proceedings and, if
aggrieved, to seek vacating of the interim order or to challenge
the same in accordance with law. Instead, respondent No. 4
chose to file a separate writ petition before this Court. The writ
petitioner has not made out any exceptional ground to maintain
writ petition when statutory appeal was pending.
7.2 The learned Single Judge, while entertaining the writ
petition, issued a series of directions and recorded findings
regarding deviation from the sanctioned plan. Whether the
construction was put up in deviation of the sanctioned plan or
in excess of the sanctioned floors is, however, a pure question
of fact which was required to be adjudicated by the Tribunal.
The learned Single Judge, in entertaining the writ petition and
recording findings on merits, committed an error in exercising
jurisdiction over a matter pending before the statutory
Appellate Authority. The findings recorded in the impugned
order have the effect of frustrating the pending appeal before
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the Tribunal and depriving the appellants of their statutory right
of appeal under the KMC Act.
7.3 The appellants, being aggrieved by the order of
demolition passed under Section 321(3) of the KMC Act,
preferred an appeal before the Karnataka Appellate Tribunal, in
which an order of status quo is granted. Respondent No. 4 has
instituted a petition under Article 226 of the Constitution of
India seeking a writ of mandamus to enforce the order of
demolition.
7.4 It is a well-settled position of law that the existence of an
alternative remedy is not an absolute bar to the maintainability
of a writ petition under Article 226 of the Constitution.
However, the writ petition may be entertained only in
exceptional circumstances where there is:
(i) a breach of fundamental rights;
(ii) a violation of the principles of natural justice;
(iii) an excess of jurisdiction; or
(iv) a challenge to the vires of the statute or delegated
legislation.
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In the present case, none of the aforesaid exceptions are
attracted. In fact, the representation submitted by Respondent
No. 4 has been duly considered, and an order of demolition has
been passed. However, the said order could not be executed in
view of the interim order of status quo operating pursuant to
the directions issued by the Karnataka Appellate Tribunal.
7.5 The Hon'ble Supreme Court, in Dipak Kumar
Mukherjee v. Kolkata Municipal Corporation and Others3,
has held that once the Corporation has passed an order of
demolition of an illegal construction by the Mayor-in-Council, a
further direction to reconsider the matter and pass fresh orders
after hearing the owner is impermissible when the violation of
the sanctioned plan stands established.
7.6 In the present case, the competent authority, while
exercising powers under Section 321 of the KMC Act, has
quantified the extent of deviation. The said quantification has
been disputed by the appellants by availing the statutory
remedy of appeal before the Karnataka Appellate Tribunal. The
Tribunal is the fact-finding authority.
(2013) 5 SCC 336
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7.7 Further, the provisions of the KMC Act permit
regularization of deviations up to specified extent. The
determination of extent of deviation and whether the deviation
falls within such permissible limits necessarily requires factual
adjudication. Upon completion of the fact-finding exercise by
the Tribunal, the strict view regarding enforcement of
deviations, as observed by the Hon'ble Supreme Court in Dipak
Kumar Mukherjee (supra), can thereafter be implemented.
8. The writ petition was filed seeking a mandamus to direct
dismantling of the alleged illegal construction and to restrain
the appellants from occupying the building. The petition was
presented on 25.06.2014. By that date, however, the
respondent-authorities had already acted upon the complaint
and issued an order of demolition under Section 321(3) of the
KMC Act. The said order was challenged by the appellants
before the KAT in Appeal No.285/2014, in which an order of
status quo was granted. When the competent authority had
already exercised its power under Section 321 of the KMC Act
and passed an order of demolition, the prayer in the writ
petition seeking a mandamus to initiate such action was
premature. The learned Single Judge, despite noticing the
pendency of the appeal before the Tribunal and the subsisting
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order of status quo, proceeded to examine the factual aspects
relating to the alleged deviations and issued a series of
directions, including the impugned direction to demolish or
remove the unauthorised construction. In the considered
opinion of this Court, when the statutory appeal was pending
consideration before the competent Appellate Authority, the
writ petition itself was premature. Consequently, the impugned
directions issued therein are unsustainable in law and travel
beyond the scope of the relief sought in the writ petition.
9. The learned Single Judge, while entertaining the writ
petition, failed to take note of the action already initiated by
the BBMP, which was sub judice before the KAT. The learned
Single Judge further proceeded on the premise as if the
respondent-authorities had not taken any action in respect of
the alleged violations by the appellants.
10. In view of the above findings, the other contentions,
including those relating to the percentage of deviation and the
scope of regularization, are kept open.
11. For the reasons aforesaid, we find merit in the writ appeal
and proceed to pass the following:
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Order
(i) The writ appeal is allowed.
(ii) The order dated 19.11.2014 in W.P. No.29795/2014
is set aside.
(iii) The KAT shall decide the pending Appeal
No.285/2014 without being influenced by the
findings/observations made in the impugned order.
(iv) All contentions of the parties are left open. Any
observations made in this order are for disposal of
this appeal only.
(v) No orders as to costs.
Sd/-
(JAYANT BANERJI)
JUDGE
Sd/-
(K. V. ARAVIND)
JUDGE
MV
