Allowed

Sobha Sunflower Owners Association v. the Commissioner

Karnataka HC9 Oct 2020WP/5419/2013

Case brief

AI extract

What is this about?

Held premature. The High Court of Karnataka allowed the writ petition and set aside a notice from BBMP demanding production of documents concerning an apartment, ruling it invalid as it lacked a Commissioner's determination of encroachment required under the relevant Act.

What did the court decide?

The writ petition was allowed; the notice dated 23.01.2013 was set aside; liberty reserved to respondents to act strictly in accordance with law.

Sobha Sunflower Owners Association Vs the… — Pension and Retirement Benefits | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 09^TH DAY OF OCTOBER, 2020

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BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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WRIT PETITION No.5419/2013 (LB - BMP)

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BETWEEN

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SOBHA SUNFLOWER OWNERS ASSOCIATION, REPRESENTED BY ITS SECRETARY MR. MUTHUVEL ARUMUGAM, #173, BASAVANAGAR, BENGALURU – 560 037.

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... PETITIONER

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(BY SRI B.K.SAMPATH KUMAR, ADVOCATE (VIDEO CONFERENCING))

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AND

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THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE, HAL AIRPORT SUB DIVISION, MAHADEVAPURA, BENGALURU – 560 037.

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THE AEE BRUHAT BANGALORE MAHANAGARA PALIKE, HAL AIRPORT SUB – DIVISION, MAHADEVAPURA, BENGALURU – 560 037.

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M/S SOBHA DEVELOPERS LTD A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED Deleted as per the order dated OFFICE AT, E-106, 24.07.2018. SUNRISE CHAMBERS, #22, ULSOOR ROAD, BENGALURU – 560 042. ... RESPONDENTS

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(BY SRI B.V. MURALIDHAR, ADVOCATE (VIDEO CONFERENCING))

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTICE DATED 23.1.2013 VIDE ANNEXURE-A ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner in this writ petition has called

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question the notice issued on 23.01.2013 by the respondents – Bruhat Bengaluru Mahanagara Palike (hereinafter referred to as ‘the BBMP’) whereby, the

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BBMP has directed the petitioner to produce the documents on the score that construction of the apartment is on an encroachment of the public road.

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Brief facts leading to the filing of the present

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petition are that, the petitioner - Association is an apartment bearing the name ‘Sobha Sunflower

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Owners Association’, are the residents of the flats.

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The BBMP sought to acquire a portion of the property in which the members of the petitioners are residing, for the purpose of road widening and issued a communication to the petitioner on 10.02.2012, stating that they would offer TDR in lieu of the portion of the property of the respondents which they planned to acquire. The petitioner replied to the communication dated 10.02.2012, contending that the communication seeking to acquire did not precede any notification for such acquisition and also requested that they had all approvals from the statutory authorities and such an action now, would cause irreparable loss.

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The petitioner – Association sought a

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clarification from the hands of the BBMP with regard to the communication dated 10.02.2012, which was replied by two communications i.e., on 27.07.2012 and 23.11.2012, stating that they would acquire the property as they were notified in terms of the communication dated 10.02.2012. Since the

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communication was a direction to the petitioner that they should relocate the equipments in the apartment, the petitioner refused to the same on the ground that it was impractical and impossible to do so. This refusal to accede to the request of the BBMP led to issuance of a notice on 17.01.2013, alleging that the petitioner had encroached the property of the BBMP on eastern portion and directed that the reply be given in three days.

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In the notice dated 17.01.2013, the BBMP

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directed the petitioner to produce all the documents that had already been submitted and an occupancy certificate being issued. The petitioner by the reply dated 21.01.2013, submitted all the necessary documents with a stand that they had not encroached upon any public property. This resulted in issuance of the impugned notice dated 23.01.2013, which directed that the reply given to the notice dated 17.01.2013, was not found satisfactory and within seven days directed to submit the measurements and all other documents concerning the property, failing which, the impugned notice directed that action will be taken in accordance with law. It is at this stage, the petitioner approached this Court. This Court by order dated 31.08.2013, directed maintenance of status quo with regard to the property in question.

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Heard Sri B.K.Sampath Kumar, learned

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counsel for the petitioner and Sri B.V.Muralidhar, learned counsel for the respondents and perused the material on record.

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Learned counsel for the petitioner would contend that the petitioner was directed to give away a portion of the property for the purpose of widening up of the road. The petitioner did not straight away refuse but sought time that they would consult all the 40 family / members of the Apartment and then they would consider whether the portion could be given for widening of the road by the BBMP. The BBMP insisted upon the petitioner – Association that they would offer Transfer of Development Rights (TDR), in lieu of the portion of the property, to which the petitioner - Association did not accede to. In those circumstances, the BBMP only to harass the petitioner has issued two correspondences, one is notice /

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intimation letter - Annexure ‘K’ and another is the impugned notice Annexure ‘A’.

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On the other hand, the learned counsel for the BBMP would contend that request to give up a portion of the property by the petitioner – Assocaition for the purpose of widening the public road has nothing to do with the impugned notice, which is a plain notice asking the petitioner to produce all the documents concerning the property and the writ petition is premature as the petitioner has not even chosen to reply to the notice and have approached this Court in this writ petition.

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Admittedly, the occupancy certificate was issued to the petitioner on 08.09.2006 in terms of Section 310 of the Karnataka Municipal Corporations Act, 1976(hereinafter referred to as ‘the Act’), which reads as follows:

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“310. Completion certificate and permission to occupy or use.- (1) Every person shall, within one month after the completion of the erection of a building or the execution of any such work, deliver or send or cause to be delivered or sent to the Commissioner at his office notice in writing of such completion, accompanied by a certificate in the form prescribed in the bye-laws signed and subscribed in the manner prescribed and shall give to the Commissioner all necessary facilities for the inspection of such buildings or of such work and shall apply for permission to occupy the building.

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[(1A) Notwithstanding anything contained in sub-section (1), where permission is granted to any person for erection of a building having more than one floor, such person shall, within one month after completion of execution of any of the floors of such building, deliver or send or cause to be delivered or sent to the Commissioner

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at his office, a notice in writing of such completion accompanied by a certificate in the form prescribed in the bye-laws, signed and subscribed in the manner prescribed and shall give to the Commissioner all necessary facilities for inspection of such floor of the building and may apply for permission to occupy such floor of the building.]

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(2) No person shall occupy or permit to be occupied any such building, or part of the building or use or permit to be used the building or part thereof affected by any work, until,-

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(a) permission has been received from the Commissioner in this behalf; or

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(b) the Commissioner has failed for thirty days after receipt of the notice of completion to intimate his refusal of the said permission.”

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Prior to issuance of the occupancy certificate, the

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BBMP has verified all the documents concerning the construction of the apartment.

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There is no dispute with regard to the

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occupancy certificate being issued in favour of the petitioner concerning the property way back in the year 2006, without any qualification by the BBMP. What triggered the petitioner – Association to approach this Court is that, the request of the BBMP for surrendering a portion of the compound wall of the Apartment for the project of road widening which was not immediately acceded to by the Association. There are plethora of correspondences made between the parties explaining the entire backdrop of the case, road widening and refusal by the petitioner. Annexure ‘K’ dated 17.01.2013 is clear that the petitioner has not acceded to the request of the BBMP.

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A chain of correspondences have taken place between the two, the petitioner – Association by its reply dated 21.01.2013, while furnishing the

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sanctioned plan, had indicated that if any other documents are needed, sufficient opportunity or time be given. But the BBMP without waiting for the documents to be submitted by the petitioner - Association, has issued the impugned notice - Annexure ‘A’ dated 23.01.2013.

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Once having issued an occupancy certificate, repeatedly seeking documents with regard to Occupancy Certificate, which were already scrutinized prior to issuance of the occupancy certificate is unwarranted.

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This would not preclude the Corporation from taking action in accordance with law as the BBMP has power to do so under Section 288A and Section 288D of the said Act, which reads as follows:

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“ 288-A. Prohibition of structures or fixtures which cause obstruction in public streets .—No person shall except with the

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written permission of the Commissioner under section 288 erect or set up any wall, fence, rail, post, step, booth or other structures or fixtures in or upon any public street or upon or over any open channel, well or tank in any street so as to form an obstruction to, or an encroachment upon or a projection over, or to occupy any portion of such street, channel, drain well or tank.

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288-D. Commissioner may without notice

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remove encroachment. —Notwithstanding anything contained in this Act, the Commissioner may, without notice, cause to be removed,—

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(a) any wall, fence, rail, step, booth or other structure or fixture which is erected or set up in contravention of the provisions of section 288A;

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(b) any stall, chair, bench, box, ladder, bale, or any other thing whatsoever, placed or deposited in contravention of section 288B;

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(c) any article, whatsoever, hawked or exposed for sale in any public place or in any public street in contravention of section 288C and any vehicle, package, box, board, shelf or any other thing in or on

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which such article is placed, or kept for the purpose of sale.”

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Section 288D of the said Act clearly mandates

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that such an order should emanate from the Commissioner of the BBMP and the present impugned notice is neither emanated from the Commissioner nor an order to that effect is passed by the Commissioner. Therefore, the impugned notice issued is contrary to the said provisions of the said Act as there is no determination of encroachment made by the Commissioner in terms of Section 288D read with Section 288A of the said Act, unless there is determination of the encroachment of the road as mandate by the Statute. The impugned notice issued in the present case will have no legs to stand.

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For the aforestated reasons, the following:

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a. The writ petition is allowed.

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b. The notice dated 23.01.2013 is set aside.

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c. Liberty is reserved to the respondents - BBMP

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to take action, if any, strictly in accordance

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with law keeping in mind the observations

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made in the course of the order.

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Ordered accordingly.

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Sd/JUDGE

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nvj CT:MJ

Sobha Sunflower Owners Association v. the Commissioner

Case brief

What is this about?

What did the court decide?

Sobha Sunflower Owners Association v. the Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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