Sri a Sreekantappa Vs Bruhat Bangalore Mahanagara Palike

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NC: 2025:KHC:26541 WP No. 2201 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16^TH DAY OF JULY, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 2201 OF 2018 (LB-BMP)

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BETWEEN:

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SRI. A. SREEKANTAPPA S/O A. RUDRAPPA AGED ABOUT 71 YEARS R/O NO.85, 9TH CROSS GAJANANA NAGARA, BEYOND APOLLO SCHOOL HEGGANAHALLI CROSS BANGALORE 560 091.

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…PETITIONER

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(BY SRI. UDITA RAMESH, ADVOCATE)

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AND:

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Digitally signed by NAGARAJA B M Location: HIGH COURT OF KARNATAKA

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BRUHAT BANGALORE MAHANAGARA PALIKE REPRESENTED BY ITS COMMISSIONER BANGALORE 560 002.

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THE ASSISTANT EXECUTIVE ENGINEER HEGGANAHALLI SUB-DIVISION BRUHATH BANGALORE MAHANAGARA PALIKE BANGALORE-560 002.

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…RESPONDENTS

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(BY SRI. PAWAN KUMAR, ADVOCATE FOR R1 AND R2 [VK NOT FILED])

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 13.05.2016 (ANNEXURE-J) IN APPEAL NO. 1233/2012

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PASSED BY THE KARNATAKA APPELLATE TRIBUNAL, BENGALURU AND ETC.

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THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL ORDER

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Petitioner is aggrieved by the order passed by respondent No. 1 under Section 321(3) of the Karnataka Municipal Corporations Act, 1976 (for short "KMC Act, 1976") and the order of the Appellate Tribunal, confirming the order passed under Section 321(3) in Appeal No. 1233 of 2012.

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Heard the learned counsel for petitioner and learned counsel for respondents.

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3. The facts leading to the case are as under:

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Petitioner claims to be the owner of the house property bearing No. 85 corresponding Khata No. 756/2/85, measuring East to West 40 sq.ft. and North to South 66 sq. ft. situated at 9^th cross, Gajanana Nagara, Hegganahalli, Bengaluru. Petitioner

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is tracing title over the petition property based on registered sale date dated 18.06.1994, which is evidenced at Annexure-A.

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Petitioner also asserts that the then Municipality, Dasarahalli, has collected development charges and petitioner’s name is reflected in the property records. Copy of the receipt for development charges is evidenced at Annexure-B.

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While petitioner's property was brought within the jurisdiction of BBMP, after collecting necessary charges, BBMP has effected khatha in the petitioner's name and khatha extract is produced, which is evidenced at Annexure-"C".

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The petitioner states that an application was submitted to the competent authority seeking sanction of a building plan for the construction of a residential house. A copy of the application and the plan is produced as Annexure-D. It is the petitioner’s assertion that, in terms of the applicable statutory framework, the then Commissioner of BBMP was required to either grant or reject the sanction within 30 days from the date of receipt of the application. However, despite submitting the requisite application, no communication or order

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was issued by the concerned authority within the stipulated period. Relying on this statutory presumption, and under a bona fide belief that the application would be duly considered, the petitioner proceeded to construct a residential house by availing a housing loan and mobilizing funds from various private financial institutions.

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The petitioner further asserts that, based on a frivolous complaint, respondent No. 2 issued a notice dated 08.11.2022 under Sections 321(1) and 321(2) of the Karnataka Municipal Corporations Act, alleging that the construction was illegal and undertaken without a sanctioned plan. Despite filing detailed objections and bringing to the notice of the authority that an application for plan sanction had been duly submitted, respondent No. 2 proceeded to pass a confirmation order dated 23.11.2012 under Section 321(3) of the Act. Aggrieved, the petitioner preferred Appeal No. 1233/2012 before the Karnataka Appellate Tribunal, challenging the confirmation order.

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The Appellate Tribunal, however, dismissed the appeal, holding that the construction had been carried out in

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the absence of an approved plan. The Tribunal, therefore, concluded that the order passed by respondent No. 2 did not warrant any interference and upheld the same.

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Upon careful scrutiny of the material on record, this Court finds that the petitioner had indeed submitted an application to the jurisdictional Joint Commissioner seeking approval of the proposed plan for construction of a residential house. Though learned counsel for BBMP has pointed out that the application was not properly addressed to the Assistant Executive Engineer, this Court is of the considered view that the present case cannot be categorized as one where the owner has carried out construction without even applying for a sanctioned plan. Even assuming the application was misaddressed, it was incumbent upon the authorities to forward the application to the competent officer for necessary action.

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It is not in dispute that the construction of the petitioner’s residential house was completed during the period 2009–2010. In view of this fact, the petitioner’s case is squarely covered by the judgment of a Co-ordinate Bench of this Court in a batch of writ petitions led by W.P. No.

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55716/2017 . At paragraph 32 of the said judgment, while answering Point No. 5, the Co-ordinate Bench has held as follows:

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" 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 subsection (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 petitioners for issuance of plan sanction and grant it in accordance with the law.

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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

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contrary to the applicable law at the behest of the private party.

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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 everyone equally and not to discriminate against the other on the basis of the complaint.

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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. "

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This Court finds it necessary to take note of the statutory remedy provided under sub-section (8) of Section 240 of the Bruhat Bengaluru Mahanagara Palike Act, 2020 (BBMP Act, 2020), which enables an owner to regularize unauthorized constructions by submitting an application for plan sanction, subject to payment of prescribed penalty. The said provision carves out an opportunity for regularization in appropriate cases, thereby offering a remedial mechanism for owners who

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may have undertaken construction without an approved plan. In the present case, the petitioner squarely falls within the ambit of sub-section (8) of Section 240 of BBMP Act, 2020, as it is not in dispute that a construction has been completed and that the petitioner had initially submitted an application for plan sanction, though no formal approval was granted within the stipulated time.

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In light of the statutory provision under the BBMP Act, 2020, and the law declared by a Co-ordinate Bench in a reported judgment (W.P. No. 55716/2017 and connected matters), this Court is of the considered opinion that the action initiated by the BBMP authorities under Section 321 of the Karnataka Municipal Corporations Act (KMC Act) was solely premised on the absence of a sanctioned building plan. The authorities, overlooking the factual position that the petitioner had submitted an application and completed construction more than a decade ago, proceeded to issue demolition orders, mechanically invoking Section 321 of the BBMP Act, 2020. In the aforementioned judgment cited by the petitioner’s counsel, the Co-ordinate Bench has categorically held that in cases

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where the construction conforms to the building bye-laws and zonal regulations, the authorities are expected to act with a degree of leniency and should consider regularization, particularly where no blatant or wilful violations have occurred. The judgment further emphasizes that constructions carried out bona fide, albeit without sanction, should not be subjected to harsh penal action such as demolition, especially when the owners have recourse to the provisions of the new enactment.

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Having regard to the peculiar facts and circumstances of this case where the petitioner undertook construction in 2009–2010 believing that the plan sanction would be processed in due course and in view of the abovereferred judgment of the Co-ordinate Bench, this Court is of the view that the petitioner must be afforded the opportunity to invoke the statutory remedy provided under the BBMP Act, 2020. In particular, Section 240 of the Act recognizes the right of the owner to apply for post facto plan sanction upon payment of penalty, which serves the twin purpose of upholding planning discipline while preventing disproportionate hardship to owners who acted in good faith.

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Accordingly, liberty is reserved to the petitioner to submit an application under Section 240(8) of the BBMP Act, 2020, seeking regularization of the construction by paying the requisite penalty as may be determined by the competent authority. In the event such an application is submitted along with the necessary documents and penalty, the concerned authority shall process the same strictly in accordance with law, having due regard to Chapter XVI of the BBMP Act, 2020. The authorities are also directed to consider whether the construction in question adheres to the applicable building byelaws and zonal regulations, and take a sympathetic view, as guided by the judgment of the Co-ordinate Bench. It is further clarified that, pending consideration of such application, no coercive steps shall be taken against the petitioner in relation to the impugned demolition proceedings.

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For the foregoing reasons, this court proceeds to pass the following:

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ORDER

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(i) The writ petition is hereby allowed.

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(ii) The impugned order dated 13.05.2016 passed by the Karnataka Appellate Tribunal, Bengaluru, as per Annexure-“J”, dismissing the appeal and confirming the notice issued under Section 321(3) of the Karnataka Municipal Corporations Act, 1976 by respondent No.1 (Annexure-“G”), is hereby quashed.

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(iii) The petitioner is granted liberty to submit a fresh application seeking sanction of the building plan in accordance with the provisions of the BBMP Act, 2020.

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(iv) In the event the competent authority prescribes any penalty for regularization, the petitioner shall remit the same within the time period stipulated by the said authority.

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(v) Upon such deposit, the competent authority shall process the petitioner’s application in accordance with law, and shall be guided by the principles laid down by the Co-ordinate Bench of this Court in W.P. No. 55716/2017 , subject to the petitioner’s compliance with the applicable building bye-laws and zonal regulations. Thereafter, sanction of the building plan shall be granted if the construction is found to be in conformity.

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(vi) If, during the course of scrutiny, any deviation from the sanctioned norms is identified, the petitioner shall be obligated to remove such deviations forthwith,

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in compliance with the directions issued by the competent authority.

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Sd/(SACHIN SHANKAR MAGADUM) JUDGE

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ALB List No.: 1 Sl No.: 29

Sri a Sreekantappa v. Bruhat Bangalore Mahanagara Palike

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Sri a Sreekantappa v. Bruhat Bangalore Mahanagara Palike

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