Bruhat Bengaluru Mahanagara Palike Vs Avenue Supermarts Ltd.

THE JOINT COMMISSIONER, MAHADEVAPURA ZONE, BRUHATH BENGALURU MAHANAGARA PALIKE, WHITEFIELD MAIN ROAD, HRB COLONY, OPPOSITE PHOENOXITY MARKET CITY, MAHADEVAPURA, BENGALURU-560 048.

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THE ASSISTANT DIRECTOR, (TOWN PLANNING), MAHADEVAPURA, BRUHAT BENGALURU MAHANAGARA PALIKE, WHITEFIELD MAIN ROAD, HRB COLONY, OPPOSITE TO PHEONIX MARKET CITY, MAHADEVAPURA, BENGALURU-560 048.

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…APPELLANTS

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(BY SRI JAGADEESWARA N R, ADVOCATE)

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NC: 2026:KHC:20437-DB WA No. 1913 of 2024 C/W WA No. 1843 of 2024 WA No. 1895 of 2024

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HC-KAR

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AND:

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AVENUE SUPERMARTS LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT 1956, HAVING ITS REGD. OFFICE AT ANJANEYA CO-OP. HOUSING SOCIETY LTD., ORCHARD AVENUE, OPP. HIRANDANI FOUNDATION SCHOOL, POWAI, MUMBAI-400 076. REP. BY ITS AUTHORIZED SIGNATORY, DEPUTY GENERAL MANAGER, NIKHIL SURYANARYANAN.

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…RESPONDENT (BY SRI VIKRAM A HUILGOL, SENIOR ADVOCATE FOR SRI GOUTHAM CHAND S F, ADVOCATE)

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THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO i) CALL FOR THE RECORDS; ii)SET ASIDE THE ORDER DATED 23/11/2023 PASSED BY THE LEARNED SINGLE JUDGE IN WP NO.20383/2023 ETC.

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IN WA NO. 1843/2024

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BETWEEN:

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BRUHAT BENGALURU MAHANAGARA PALIKE, N R SQUARE, HUDSON CIRCLE, BENGALURU-560 002. REP. BY ITS CHIEF COMMISSIONER.

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THE JOINT DIRECTOR OF TOWN PLANNING (NORTH), BRUHAT BENGALURU MAHANAGARA PALIKE, N R SQUARE, HUDSON CIRCLE, BENGALURU-560 002.

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THE ASSISTANT EXECUTIVE ENGINEER, HORAMAVU SUB-DIVISION,

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BRUHAT BENGALURU MAHANAGARA PALIKE,

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NC: 2026:KHC:20437-DB WA No. 1913 of 2024 C/W WA No. 1843 of 2024 WA No. 1895 of 2024

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HC-KAR

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JAYANTHINAGAR CIRCLE, OLD HORAMAVU, PANCHAYAT BUILDING, BENGALURU-560 113.

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...APPELLANTS

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(BY SRI JAGADEESWARA N R, ADVOCATE)

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AND:

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AVENUE SUPERMARTS LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, HAVING ITS REGD. OFFICE AT: ANJANEYA CO-OP. HOUSING SCOIETY LTD., ORCHARD AVENUE, OPP HIRANDANI FOUNDATION SCHOOL, POWAI, MUMBAI-400 076. REP. BY ITS AUTHORISED SIGNATORY, DEPUTY GENERAL MANAGER, NIKHIL SURYANARYAN.

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THE TAHSILDAR, DOORAVANINAGAR, KRISHNARAJAPURA, BENGALURU-560 036.

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THE BENGALURU DEVELOMENT AUTHORITY, T CHOWDAIAH ROAD, BENGALURU 560 020. REP. BY ITS COMMISSONER.

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...RESPONDENTS

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(BY SRI VIKRAM A HUILGOL, SENIOR ADVOCATE FOR SRI GOUTHAM CHAND S F, ADVOCATE FOR R-1; SRI M.N SUDEV HEGDE, AGA FOR R-2; SRI B S SACHIN, ADVOCATE FOR R-3)

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THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO i) CALL FOR THE RECORDS; ii) SET ASIDE THE ORDER DATED 23.11.2023 PASSED BY THE LEARNED SINGLE JUDGE IN WP No. 3728 OF 2022 ETC.

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4 - NC: 2026:KHC:20437-DB WA No. 1913 of 2024 C/W WA No. 1843 of 2024 WA No. 1895 of 2024

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HC-KAR

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IN WA NO. 1895/2024

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BETWEEN:

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BRUHAT BENGALURU MAHANAGARA PALIKE, N R SQUARE, HUDSON CIRCLE, BENGALURU – 560 002. REP. BY ITS CHIEF COMMISSIONER.

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THE JOINT DIRECTOR OF TOWN PLANNING (NORTH), BRUHAT BENGLAURU MAHANAGARA PALIKE, N R SQUARE, HUDSON CIRLCE, BENGALURU 560 002.

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THE ASSISTANT DIRECTOR, (TOWN PLANNING), BRUHAT BENGLURU MAHANGARA PALIKE, WHITEFILED MAIN ROAD, RHB COLONY, OPP PHOENIX MARKET CITY, MAHADEVAPURA, BENGALURU 560 048.

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...APPELLANTS

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(BY SRI JAGADEESWARA N R, ADVOCATE)

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AND:

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AVENUE SUPERMARTS LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, HAVING ITS REGD. OFFICE AT ANJANEYA CO-OP. HOUSING SOCIETY LTD., ORCHARD AVENUE OPP. HIRANANDANI FOUNDATION SCHOOL, POWAI, MUMBAI - 400 076. REP. BY ITS AUTHORISED SIGNATORY, DEPUTY GENERAL MANAGER, NIKHIL SURYANARAYANAN.

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...RESPONDENT

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(BY SRI VIKRAM A HUILGOL, SENIOR ADVOCATE FOR SRI GOUTHAM CHAND S F, ADVOCAT)

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5 - NC: 2026:KHC:20437-DB WA No. 1913 of 2024 C/W WA No. 1843 of 2024 WA No. 1895 of 2024

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HC-KAR

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THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO i) CALL FOR THE RECORDS; ii) SET ASIDE THE ORDER DATED 23.11.2023 PASSED BY THE LEARNED SINGLE JUDGE IN W.P.No.21441/2022 ETC.

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THESE APPEALS, COMING ON FOR PRELIMINARY HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE T.M.NADAF

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE D K SINGH)

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These special inter-Court of Appeals have been filed

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impugning the common judgment and order passed on 23.11.2023 by this Court in W.P.Nos.3728/2022, 21441/2022 and 20383/2023.

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The petitioner has applied the building plans for approval for construction of the commercial complex under the brand name ‘D-Mart’. The petitioner claims to be the owner of land in Sy.No.20 and 8 of Ammani Byrathi Khane Village, K.R.Puram Hobli, Bangalore East Taluk having purchased the same from the owners vide sale deed dated

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HC-KAR

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30.03.2021. The Petitioner had got this agricultural land for non-agricultural use after obtaining necessary ‘no objection certificate’. The appellant-Corporation has sanctioned the building plans for construction of commercial complex of the petitioner on 29.02.2021.

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It appears that some local residents of the area had complained to the Bruhat Bengaluru Mahanagara Palike (hereinafter referred to as “ BBMP ” for short) alleging that the petitioner had encroached upon Rajakaluve or Water feed Canal that has resulted in flooding the area. In view of the aforesaid complaint, a notice dated 17.01.2022 came to be issued to the petitioner, which was replied to on 18.01.2022. Thereafter, the BBMP had issued notices under Sections 238 and 239 of the Bruhat Bengaluru Mahanagara Palike Act, 2020 (hereinafter referred to as the ‘ BBMP Act ’ for short) on 27.01.2022, calling upon the petitioner to stop construction on the ground that the petitioner had encroached upon the ‘Haddigidada Halla’. The said notices

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HC-KAR

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have been challenged in W.P.No.3728/2022. The writ Court vide order dated 18.02.2022 had stayed the operation of the said notices.

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During the pendency of W.P.No.3728/2022, the

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Joint Commissioner, Mahadevapura Zone had observed that the building plan sanction in favour of the petitioner would be required to be cancelled on account of encroachment of a ‘Haddigidada Halla’. In pursuance to the said letter written by the Joint Commissioner, a showcause notice came to be issued to the petitioner on 12.09.2022 and thereafter, an enquiry notice was also issued on 26.09.2022. The same were challenged by filing another writ petition in W.P.No.21441/2022.

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The third writ petition in W.P.No.20383/2023

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came to be filed by the petitioner seeking a writ of mandamus directing respondent-Corporation to issue occupancy certificate in respect of commercial complex constructed by the petitioner in pursuance to the plan sanctioned by the BBMP.

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HC-KAR

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Learned Single Judge having examined the RTC produced before the writ Court in pursuance to the order passed and observed that the undivided Sy.No.20 measuring 2 acres and 26 guntas, out of which, 2 guntas has been denoted as ‘A’ Karab. There was no demarcation of alleged 9 guntas of karab which allegedly had been encroached upon by the petitioner in respect of ‘Haddigidada Halla’. It is also said that if there existed Haddigidada Halla or 9 guntas of karab land that would have to be demarked as ‘B’ karab and not ‘A’ Karab. There was no ‘B’ karab land at all in Sy.No.20 in the revenue record.

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Learned Single Judge also noted that the entire proceedings got initiated by the Corporation on the basis of encroachment of ‘Haddigidada Halla’, but the ‘Haddigidada Halla’ is not shown in Revised Master Plan (RMP). It appears that some report has been submitted by the Additional Director of Land Records (ADLR). The learned Single Judge, therefore, has observed that if the

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HC-KAR

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BBMP is of the opinion that the petitioner had encroached upon the ‘Haddigidada Halla’, the respondent-Corporation would be at liberty to initiate such proceedings against the petitioner by clearly detailing out the location of ‘Haddigidada Halla’ and detailing out the documents under which the said classification had been made with reference to both location and area.

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The learned counsel for the appellants submits that the observation on the report regarding various entries in the RTC and master plan would come on the way of adjudication by the BBMP and the learned Single Judge virtually held that the petitioner had not encroached upon the ‘government land’ or ‘Haddigidada Halla’. He therefore submits that it would be a mere formality to issue notice and call upon the petitioner to respond even after there being reports against him by the ADLR as well as the Court Commissioner appointed by this Court.

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On the other hand, Sri.Vikram A. Huilgol, learned Senior Counsel submits that the petitioner has not

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encroached upon any government's land. The petitioners have constructed the commercial complex strictly in accordance with the building sanction plan on their own land. He submits that the impugned proceedings are nothing but the misuse of the process of the Court and therefore, learned Single Judge has rightly allowed the writ petition with liberty to the respondent-Corporation.

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We have heard Sri.Jagadeeswara.N.R., learned counsel appearing for the BBMP and Sri.Vikram A.Huilgo., learned Senior Counsel appearing for respondents.

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Whether the petitioner has encroached upon Rajakaluve or Haddigidada Halla or the government land and validity of the building plan are to be considered by the BBMP by issuing them notice and calling for their response.

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It is needless to say, that the petitioners would be at liberty to produce all relevant records and evidence in the hearing and the BBMP would give due consideration to the evidence produced by the petitioners before coming

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HC-KAR

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to any conclusion regarding encroachment by the

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petitioners.

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In view of the aforesaid observation, we dispose of these writ appeals with liberty to the appellantcorporation to issue fresh show-cause notice for determining whether the respondent have encroached upon the government land or Haddigidada Halla, and the respondent would be at liberty to produce all the relevant evidence and record in support of their submissions against such show-cause notice.

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The respondent shall also be afforded a personal hearing before any decision is taken. We direct BBMP to consider all evidence submitted by the respondents, along with their submissions, and the same shall be duly reflected in the order, if any, passed against them. We further direct BBMP to complete the proceedings within a period of two months.

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BBMP shall consider the issuance of the Occupancy Certificate after verifying whether the building

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is constructed in accordance with the sanctioned building plan and applicable bye-laws, and upon conducting the necessary inspection. This will also be carried out within a

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period of two months, as directed above.

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Sd/(D K SINGH) JUDGE

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Sd/(T.M.NADAF) JUDGE

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SR

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List No.: 1 Sl No.: 19

Bruhat Bengaluru Mahanagara Palike v. Avenue Supermarts Ltd.

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Bruhat Bengaluru Mahanagara Palike v. Avenue Supermarts Ltd.

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