Sri. Kikkeri Krishnamurthy Vs the Commissioner

THE ASSISTANT EXECUTIVE ENGINEER BASAVANAGUDI SUB DIVISION BRUHAT BENGALURU MAHANAGARA PALIKE, WARD NO 154, C T BED, OPP SSM SCHOOL, THYAGARAJANAGAR CHANNMANAKERE ACCHUKATTU BENGALURU – 560 028

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SMT. VIMALA NAGARAJ AGED ABOUT 76 YEARS, W/O N. NAGARAJ,

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SMT. REKHA N. AGED ABOUT 48 YEARS, D/O N.NAGARAJ RESPONDENT NO.3 AND 4 ARE R/AT NO.21 SHOP STREET,

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NC: 2026:KHC:8324 WP No. 11891 of 2019

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HC-KAR

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BASVANAGUDI, BENGALURU-560 004.

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…RESPONDENTS

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(BY SRI.PAWAN KUMAR, ADVOCATE FOR R1 AND R2; SRI.RAMESH CHANDRA, ADVOCATE FOR R3 AND R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE ORDER DATED 08.02.2019 VIDE ANNEXURE-A PASSED BY THE HON'BLE KARNATAKA APPELLATE TRIBUNAL IN APPEAL NO.274/2016 AS THE SAME IS NOT PROPER AND CORRECT.GRANT AN INTERIM ORDER TO STAY ALL FURTHER PROCEEDINGS PURSUANT TO THE ORDER DATED 08.02.2019 VIDE ANNEXURE-A PASSED BY THE R-1 AUTHORITY I.E., THE HON'BLE KARNATAKA APPELLATE TRIBUNAL, BENGALURU IN APPEAL NO.274/2016 AND DIRECT THE R-2 NOT TO TAKE ANY COERCIVE STEPS AGAINST THE PETITONER/PETITIONER'S SCHEDULE PREMISES IN TERMS OF THE FINAL ORDER PASSED U/S 321(3) OF THE K.M.C. ACT, 1976.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

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ORAL ORDER

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The Petitioner is before this Court seeking for the following reliefs;

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a. Issue a writ of certiorari or any other appropriate order quashing vide ANNEXURE-A the Order dated 08.02.2019 passed by the Hon'ble Karnataka Appellate Tribunal in Appeal No. 274/2016 as the same is not proper and correct; and

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b. Pass such other order / orders as this Hon'ble Court deems fit to grant in the facts and circumstances of the case including the costs of this Writ Petition, in the interest of justice and equity.

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HC-KAR

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On the ground that construction had been put up by the petitioner without a sanction plan, proceedings had been taken up under Section 321 of the Karnataka Municipal Corporations Act, 1976 (for short hereinafter referred to as “ KMC Act, 1976 ”) , which was challenged by the petitioner before the Karnataka Appellate Tribunal in Appeal No.274 of 2016, which came to be dismissed vide order dated 08.02.2019 and it is in that background that the petitioner is before this Court seeking for the aforesaid reliefs.

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The matter was pending for several years, the petitioner was granted several opportunities to produce the sanction plan in respect to the property since it was alleged that there was a plan and the construction which has been put up is as per the sanction plan.

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Earlier a submission had been made by the learned counsel for the petitioner that the plan was in the bank of the petitioner and will be produced.

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NC: 2026:KHC:8324 WP No. 11891 of 2019

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HC-KAR

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Today a submission is made that the plan was with respondents No.3 and 4 and as such the same could not be produced.

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The submission of learned counsel for the petitioner is that;

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6.1. By relying on the sale deed executed in favour of the petitioner on 22.03.2010 at Annexure-C, more particularly Schedule is that the petitioner had purchased the first floor measuring 500 sq.ft., and the second floor having a constructed area of 200 sq.ft., and there was already a construction in the said property when the petitioner had purchased the same.

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6.2. His submission is that an application has also

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been made now under Sub-section (7) of Section 230 of the KMC Act, 1976 for grant of plan sanction, even if it were to be assumed that there was no plan sanction, which would have to be considered by respondent and if that

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NC: 2026:KHC:8324 WP No. 11891 of 2019

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HC-KAR

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is sanctioned, the construction being in accordance with the building by-laws. The violation, if at all would stand rectified.

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Sri.Ramesh Chandra., learned counsel for respondents No.3 and 4 submits is that;

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7.1. There was never any second floor which had been constructed, the petitioner has initially constructed a portion of the building structure on the second floor and thereafter continued with further construction which is putting to harm the entire building inasmuch as the building is more than 60 years old and not in a condition which can withstand the additional construction.

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7.2. His submission is also that the petitioner could not have submitted a plan sanction without the consent of respondents No.3 and 4 and no such plan sanction can be considered.

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NC: 2026:KHC:8324 WP No. 11891 of 2019

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HC-KAR

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Heard Sri.Rajesh Mahale., learned Senior counsel appearing for the petitioner, Sri.Pawan Kumar., learned counsel appearing for respondents No.1 and 2, Sri.Ramesh Chandra., learned counsel appearing for respondents No.3 and 4 and perused papers.

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The contention of Sri.Rajesh Mahale., learned Senior counsel for the petitioner by relying on the schedule to a sale deed dated 22.03.2010 is that there was a second floor already in existence. The said schedule is reproduced hereunder for easy reference;

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SCHEDULE

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All that piece and parcel of immovable property being residential house in first floor of the property bearing Bruhat Bangalore Mahanagara Palike Khatha # 22, (old # 19/1), PID # 51-8-22, situated at Shop Street, Basavanagudi, (Sannidhi Cross Road), Bangalore, the residential house having built up area of 500 sft., with RCC roof and 200 sft., of tiled roof floor, built with Red-oxide flooring, Jungle wood Doors and windows, with 300 sft., of undivided right and interest in the site measuring East to West 20 ft., and North to South 30 ft., and the property is bounded on:

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EAST BY: CONSERVANCY WEST BY : SHOP STREET NORTH BY: BUILDING BEARING # 19 SOUTH BY:ROAD-SANNIDHI CROSS ROAD

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HC-KAR

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A perusal of the Schedule would indicate that the petitioner has purchased the first floor of the property bearing Burhat Bangalore Mahanagar Palike No.22 being a residential house having built up area of 500 sq.ft., with RCC roof and 200 sq.ft., of tiled roof floor, built with red-oxide flooring, Jungle Wood Doors and Windows is what the petitioner has purchased. There is no reference to second floor in the said schedule.

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What is referred to is only the first floor having 500 sq.ft., RCC roof and 200 sq.ft., of tiled roof the same does not mean that there is a 200 sq.ft., tiled roof over the RCC which is not what is mentioned in the sale deed.

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Apart therefrom, what the petitioner has purchased is only 300 sq.ft., of undivided rights and interest in the said site i.e., 50% of the said site. The petitioner is not the owner of the entire site. When the petitioner has only undivided share in the property, the question of the petitioner alone submitting an

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HC-KAR

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application for grant of plan sanction on the second floor for the purpose of regularisation in terms of Sub-section (7) of Section 230 of the KMC Act, 1976 would not arise.

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Moreso, when the other owners viz., respondents No.3 and 4 who owned the other 50% are opposing it. Irrespective of the grounds of opposition, there being an opposition by the other landowner the question of an application by the petitioner for grant of land sanction cannot be considered.

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Thus, the submission of Sri.Rajesh Mahale., learned Senior Counsel for the petitioner that the plan which has now been submitted is required to be considered in terms of Sub-section (7) of Section 230 of the KMC Act, 1976 cannot be countenanced in either law and facts.

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There being an admission that there is an excess construction which has been put up, I do not find any infirmity in the order passed by the KAT in Appeal No.274 of 2016. In that view of the matter, no

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HC-KAR

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ground being made out, the petition stands

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dismissed .

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The respondents-BBMP is directed to mark the area which is in violation of the building by-laws for the purpose of demolition and provide a notice to the petitioner for a period of at least 60 days to enable the petitioner to remove the excess construction voluntarily and only if the excess construction is not removed voluntarily, respondent-BBMP to take the Coercive steps as is permissible under law.

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In the meanwhile, if a joint plan for sanction is submitted by the petitioner and respondents No.3 and 4, the same to be considered in terms of Subsection (7) of Section 230 of the GBA.

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SD/(SURAJ GOVINDARAJ) JUDGE

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SR

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List No.: 1 Sl No.: 20

Sri. Kikkeri Krishnamurthy v. the Commissioner

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Sri. Kikkeri Krishnamurthy v. the Commissioner

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