Dr B Gurappa Naidu Vs the Chief Commissioner Bruhat Bangalore Mahanagara Palike

THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE ABOVE APPEAL BY SETTING ASIDE THE ORDER DATED:25.01.2024 PASSED BY THE LEARNED SINGLE JUDGE IN WP NO.23906/2023 AND ALLOW THE WRIT PETITION FILED BY THE APPELLANT WHICH IS NECESSARY.

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THIS APPEAL, 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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NC: 2026:KHC:15637-DB WA No. 234 of 2024

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HC-KAR

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE T.M.NADAF)

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This intra Court appeal is filed by the unsuccessful

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petitioner under Section 4 of the Karnataka High Court Act, 1961, challenging the order dated 25.01.2024 passed by the learned Single Judge in W.P.No.23906/2023. The learned Single Judge under the impugned order disposed of the petition, declining to interfere with the order impugned in the writ petition.

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The parties are referred to as per their ranking

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before the writ Court.

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The petitioner has filed WP.No.23906/2023 for

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the following reliefs:

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(a) Issue a writ in the nature of writ of certiorari quashing the order dated 30.09.2023 made in Appeal No.128/2023 on the file of the Chief Commissioner, Bruhath Bengaluru Mahanagara Palike, Bengaluru (Annexure-A).

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(b) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the Respondent to take action against the Respondents No.2 and 3 and demolish the illegal construction put up by Respondent No.2 and 3 on the schedule property. (Annexure-B).

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HC-KAR

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(c) Pass such other and further order as this Hon'ble Court may deem fit in the fact and circumstances of the case."

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By the order dated 30.09.2023, in Appeal

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No.128/2023, the Appellate Authority set aside the confirmation order dated 16.08.2023 passed under Section 248(3) of the Bruhath Bengaluru Mahanagara Palike, Act

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2020 ('BBMP Act' for short), directing to initiate proceedings under Section 248 of the BBMP Act, 2020 as per law. The appellant further sought writ in the nature of mandamus, directing the respondent authority to take action against respondent Nos.2 and 3 and demolish the illegal construction put up by respondent Nos.2 and 3 on the scheduled property. The same was contented by the appellant before the Division Bench of this Court in the earlier round of litigation in W.A.No.890/2023, wherein certain directions were issued. The petitioner claims that in view of the order now impugned in the writ petition, there may be efforts to get over the directions issued in W.A.No.890/2023, which had put the parties to terms and

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HC-KAR

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had also issued certain directions regarding the measurement and the proceedings especially done.

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Refuting the submissions, learned counsel appearing for the private respondents submitted that the observations made in WA.No.890/2023 are only in so far as exercise of power by the Appellate Authority at the time of inspection and ought not to extend further.

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After considering the rival submissions, the learned Single Judge was of the opinion that the correctness of the order of the Chief Commissioner-BBMP impugned in the Writ Petition cannot be decided by the Writ Court. However, taking note of the directions issued by the Division Bench of this Court regarding the mode and manner of physical inspection while disposing of the W.A.No.890/2023, in the light of serious misgivings, the Learned Single Judge observed that directions (iii) required to be adhered by the Assistant Executive Engineer to whom the proceedings are remanded, if embark upon measurement once again.

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HC-KAR

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Accordingly, the learned Single Judge, disposed

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of the writ petition extending the order of status quo passed by the Appellate Authority till the conclusion of the proceedings. It is this order passed by the learned Single Judge is called in question in this intra Court appeal by the appellant.

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Heard Sri.K.N.Phanindra learned Senior Counsel

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appearing on behalf of Sri.S.B.Totad, learned counsel for the appellant and Sri.Jagadeeswara.N.R, learned counsel appearing for respondent No.1 and Sri.Anirudh A.Kulkarni, learned counsel for respondent Nos.2 and 3.

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Sri.Totad, on various grounds submits that the

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learned Single Judge has not considered the specific direction issued by the Co-ordinate Bench of this Court in W.A.No.890/2023. He further submits that the learned

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Single Judge ought to have directed the first respondent to conduct the inspection along with Secretary of the District

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Legal Services Authority attached to City Civil Court, as per the observations made in WA.No.890/2023. Since it is

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HC-KAR

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not considered by the learned Single Judge, the order passed by the learned Single Judge is required to be setaside.

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He further submits that the order of learned Single Judge directing respondent No.1 to commence the proceedings from the stage of Section 248 (1) and 248 (2) of the BBMP Act, is contrary to law and finding of the Co-ordinate Bench of this Court, with this learned counsel sought to allow the appeal and set-aside the order passed by the learned Single Judge.

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Refuting the submissions, Sri.Anirudh, learned counsel for respondent No.1 sought to dismiss the appeal, as the same does not warrant any interference, since the interest of both the parties have been considered by the learned Single judge while disposing of the matter.

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Having heard the rival submissions, we have gone through the order passed by the learned Single Judge, so also the writ appeal papers.

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HC-KAR

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The learned Single Judge at paragraph Nos.5, 6 and 7 has considered the rival submissions and in view of the observations/directions issued by the Co-ordinate Bench of this Court in the earlier round of litigation in WP.No.23906/2023, disposed of the writ petition which reads as under:

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"5. After hearing both sides while noticing that the order passed by the Chief Commissioner, BBMP, contains various factual details, the correctness of which cannot be decided by this Court. However, taking note of the directions of Division Bench regarding the mode and manner of physical inspection while disposing of W.A.No.890/2023, in light of serious misgivings, it would be appropriate that direction (iii) in W.A.No.890/2023 is followed in the event the Appellate Authority i.e. Assistant Executive Engineer to whom the proceedings are remanded were to embark upon the measurement once again.

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6. The directions issued in para-(iii) of the judgment dated 03.08.2023 passed in W.A.No.890/2023 reads as follows:-

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"(iii) If the respondents are aggrieved by the confirmation order, they may file an appeal before the Appellate Authority and if the Appellate Authority deems it necessary to inspect, the exercise of such inspection shall be carried out in presence of the Secretary of the District Legal Services Authority attached to City Civil

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HC-KAR

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Court. Needless to state that an intimation providing all necessary details of the inspection to be carried out, be supplied to the Secretary of the District Legal Services Authority, in advance. The inspection report be submitted with an endorsement/signature of the Secretary, the District Legal Services Authority."

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7. Accordingly, W.P.No.23906/2023 is disposed off. Consequent to the order of remand being made by order dated 30.09.2023, the proceedings is to commence from the stage of Section 248(1) and 248(2) of the BBMP Act. As fresh order of status quo was passed by the Appellate Authority in the appeal proceedings, it would meet the ends of justice, if the same order of status quo passed is extended, till conclusion of the proceedings."

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Except reiterating the same grounds urged before the Writ Court, no case has been made out to interfere with the order passed by the Writ Court. In view of the same, the appeal sans merit and accordingly dismissed .

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At this stage, Sri.K.N.Phanindra, learned Senior counsel appearing on behalf of Sri.S.B.Totad, learned counsel for the appellant submits that the Appellate Authority to whom the matter has been now remanded be

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HC-KAR

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directed to conclude the proceedings in time bound manner.

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Accepting the submissions, we direct the Appellate Authority/Assistant Executive Engineer to whom now the matter has been remanded to conclude the entire proceedings as expeditiously as possible within an outer limit of three months from the date of receipt of copy of this order.

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Pending interlocutory applications, if any, does

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not survive for consideration and the same is disposed of.

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Sd/(D K SINGH) JUDGE

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Sd/(T.M.NADAF) JUDGE

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PK

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List No.: 1 Sl No.: 1 ct-vn

Dr B Gurappa Naidu v. the Chief Commissioner Bruhat Bangalore Mahanagara Palike

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Dr B Gurappa Naidu v. the Chief Commissioner Bruhat Bangalore Mahanagara Palike

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