Partly allowed

Sri.M.N. Raikar v. the Assistant Executive Engineer

Karnataka HC22 Sept 2021WP/58040/2015

Case brief

AI extract

What is this about?

In a writ petition filed under Articles 226 and 227 of the Constitution, the High Court of Karnataka quashed an order of the Karnataka Appellate Tribunal. The Court held that the Tribunal erred by hearing only the father-donor of a gifted property instead of the legal owner-son-donee, violating principles of natural justice. The matter was remitted to BBMP to issue notice to the donee.

What did the court decide?

The order dated 04.12.2015 passed by the Tribunal is quashed. The matter is remitted to the BBMP to issue notice to the second petitioner, with a timeline of four weeks.

Sri.M.N. Raikar Vs the Assistant Executive… — Municipal and Town Planning | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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WRIT PETITION No.58040/2015 (LB-BMP)

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BETWEEN

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SRI.M.N. RAIKAR

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S/O OF LATE NARAHARI RAIKAR, AGED ABOUT 66 YEARS, R/AT NO.31,18TH MAIN ROAD, M.C.LAYOUT,VIJAYANAGAR, BANGALORE-560 040

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SRI M. SURYAKANTH RAIKAR S/O M.N. RAIKAR, AGED ABOUT 36 YEARS, R/AT NO.153,1ST A CROSS ROAD, CENTRAL HBCS LAYOUT,WARD NO.125(35), OPPOSITE TO PARK, VIJAYANAGAR,

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BANGALORE-560 040.

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... PETITIONERS

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[BY SRI K.N. PHANENDRA, SENIOR COUNSEL FOR SRI SRIVASTHAVA H.K., ADVOCATE]

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AND

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THE ASSISTANT EXECUTIVE ENGINEER GOVINDARAJNAGAR SUB DIVISION, BBMP WARD NO.125(35), GOVINDARAJNAGAR, VIJAYANAGAR, BANGALORE-560 040.

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THE COMMISSIONER BBMP HUTSON CIRCLE, BRUHAT BANGALORE MAHANAGARA PALIKE (BBMP) BANGALORE-560 001.

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….RESPONDENTS

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[BY SRI N.R. JAGADEESWARA, ADVOCATE FOR R1 AND R2]

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED: 04.12.2015 VIDE ANNEXURE-F PASSED BY THE KARNATAKA APPELLATE TRIBUNAL (K.A.T.) IN APPEAL NO.820/2011 AND 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 is before this Court seeking for quashing

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the order dated 04.12.2015 passed by the Karnataka Appellate Tribunal (‘Tribunal’ for short) in Appeal No.820/2011.

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Heard learned senior counsel Sri.K.N.Phaneendra, appearing for the petitioner and Sri.N.R.Jagadeeswara, learned counsel representing BBMP.

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Sans details, facts in brief that are germane for consideration of the issue in the lis are as follows:

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The first petitioner was the owner of the property bearing property No.153, Ward No.125(35), Bangalore City Corporation, 21st Division, Kempapura Agrahara Central Excise Housing Building Cooperative Society, 1^st A Cross Road, PID No.35-80-153, morefully described in the Schedule (herein referred to as Schedule property.

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The first petitioner who was the owner of the property obtained a plan for construction of a residential premises on 19.04.2010 and during the pendency of such construction, by way of a registered gift deed on 16.05.2011 makes a gift of the property in favour of his son-the second petitioner. It is thus, the second petitioner comes into the picture, after which the second petitioner applies for the khata that stood in the name of the first petitioner and the same was changed to the name of the second petitioner on 14.06.2011. Therefore, from 14.06.2011, the records in the BBMP would indicate that the second petitioner was the owner of the property.

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A notice under Section 321(2) of the Karnataka Municipal Corporation Act, 1976 (‘Act’ for short) is issued upon the first petitioner - father who is the donor of the property gifted in favour of the second petitioner who is the donee. The confirmatory orders were also passed in the name of the second petitioner.

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Reply to the notices, are submitted by the first petitioner though not urging that he was not the owner of the property and had gifted it to his son - the second petitioner, the reply was considered and a confirmatory order under Section 321(3) of the Act was also passed. This order was called in question by the petitioner before the Tribunal in Appeal No.820/2011. This came to be rejected on 04.12.2015 hearing the first petitioner and not the second petitioner as the Tribunal directs deletion of the name of the second petitioner from the array of parties, notwithstanding the afore-narrated events where the second petitioner comes into picture as owner of the property with effect from 16.05.2011.

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Therefore, the proceeding that is taken up by the Tribunal is hearing the donor who had gifted the property in favour of the donee, but not the donee. The observations are made with regard to violation of the sanctioned plan which ranges from 30% to 66.66% as is observed in the order of the Tribunal.

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Learned senior counsel would submit that the first petitioner who had gifted the property was not in a position to defend the action as all other necessary documents were at the hands of the second petitioner and the second petitioner would have demonstrated the same before the Tribunal, if he were to be heard by the Tribunal.

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On the other hand, learned counsel appearing for the respondents - BBMP would submit that the sanction of plan was applied by the first petitioner and was sanctioned in the name of the first petitioner. Therefore, if the second

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petitioner is undertaking construction, it would be without the plan itself.

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Though the contentions and the contra contentions are either technical or hyper technical, the fact is that if the construction undertaken by the second petitioner is in violation of the law, it is the duty of the Corporation to initiate proceedings against such violation, in accordance with law, issuing notice to the person/s who has to answer to such notice, in the case at hand, to the second petitioner.

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Therefore, since the second petitioner was not heard by the Tribunal notwithstanding the fact that he was the owner of the property for all legal purposes, it is for this reason, the order of the Tribunal is erroneous. The order of the Tribunal is preceded by notices being issued against the first petitioner and not the second petitioner. Therefore, the action of the BBMP also is without hearing the owner of the property - the second petitioner and is thus, rendered unsustainable.

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For the aforesaid reasons, the writ petition

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deserves to succeed by the following;

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ORDER

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(i) The writ petition is allowed in part .

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(ii) The order dated 04.12.2015, passed by the Tribunal stands quashed.

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(iii) The matter is remitted to the hands of the BBMP to issue notice to the second petitioner in terms of the law.

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(iv) Notice shall be issued to the second petitioner within four weeks from the date of receipt of a copy of this order and the second petitioner is permitted to file his reply within four weeks thereafter and the BBMP would pass appropriate orders within four weeks thereafter.

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(v) All contentions of both the parties are kept open.

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Sd/- JUDGE

Sri.M.N. Raikar v. the Assistant Executive Engineer

Case brief

What is this about?

What did the court decide?

Sri.M.N. Raikar v. the Assistant Executive Engineer

Case brief

What is this about?

What did the court decide?

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