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2018 Supreme(Kar) 1163
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
S. SUNIL DUTT YADAV, J.
Sri. Deepak Gupta S/o Sri. Vijay Kumar Gupta – Petitioner
Versus
The Commissioner, BBMP – Respondent
Writ Petition Nos. 47802, 47803, 47804 of 2018
Decided On : 10-12-2018
Advocate Appeared:
For the Petitioner: Sri. Ashok Haranahalli for Sri. Narasimharaju.
For the Respondent: Sri. Prabhuling K. Navadagi for Sri. N.R. Jagadeswara.
Headnote:
Constitution of India,1950 - Article 227 - Karnataka Municipality Corporation Act - Section 321(3) - Karnataka Municipal Corporation - Construction of industrial shed - Petitioner has challenged said order of confirmation passed KMC Act before Karnataka Appellate Tribunal KMC Act petitioner had also sought for stay of operation and execution of order of confirmation by way an application under Regulation Regulations- Karnataka Appellate Tribunal had taken up application filed Regulation for consideration- BBMP which had entered caveat in said proceedings on being notified had filed their objections to application and had also furnished records pertaining to order passed - An application was also filed by imp leading applicant who was sought to be imp leaded in said proceedings –Held, Tribunal by its detailed order has rejected filed for interim stay and has recorded that there has been adherence to procedure provisions of KMC Act in serving notice and passing orders under Sections KMC Act as found - Tribunal having considered material on record has also opined that it would not be appropriate to express any opinion on merits of case or validity of documents relied- It is also recorded that both parties have expressed readiness to co-operate and decide case early Appellate Tribunal Regulations which specifies that there would not be any order of stay only by reason of any appeal or revision having been preferred- In present case appellate authority while exercising its discretion on basis of material placed before it has passed impugned order- While no illegality warranting interference in impugned order passed by Appellate Tribunal has been made out and merely because petitioner makes out an argument that eventual order passed on could be different is no ground to interfere with impugned order Court cannot substitute its own discretion in place of judicial discretion in absence of error of jurisdiction- No detailed consideration is warranted as same would result in recording a finding which would not be appropriate as matter is yet be taken up for final disposal by Tribunal – Petition disposed
ORDER :
1. All the petitions question the identical application for stay filed in the respective appeals which has come to be dismissed on identical grounds and hence though the petitioners are different, in so far as there were different appeals as the order passed is identical, the Writ Petitions are disposed of by a common order. The appeals have been filed by different petitioners with respect to different properties challenging the orders passed under Section 321(3) of the of the Karnataka Municipality Corporation Act (for short ‘the KMC Act’) which however is identical in all the matters.
2. The petitioner being aggrieved by the order dated 17.10.2018 passed by the Karnataka Appellate Tribunal in Appeal No. 837/2018 whereby IA-1 filed under Regulation 13 of the Karnataka Appellate Regulations (‘the Regulations’ for brevity) seeking for stay of the order passed under Section 321(3) of the Karnataka Municipality Corporation Act (for short ‘the KMC Act’) had come to be dismissed, has filed the present petition.
3. It is stated by the petitioner that he had obtained a plan for the construction of industrial shed and had put up construction in accordance with the plan. It is stated that on 6.3.2018 an order under Section 321(2) of the KMC Act had come to be passed detailing the nature of deviation as follows:-
Details of deviations made with reference to the sanctioned plan L.P. No. Ad.com/SUT/ 1384/2013-14, dated 21-03-2014
(The Details of the deviation is the same in respect of plan L.P. No. Ad.com/SUT/ 1383/2013-14, date 21-03-2014)
| S. No. | Description | Set back as per Sanctioned Plan (in Mtr) | Set back as per actual (in Mtr) | Deviation width (in Mtr) | Deviation percentage | Remarks Action should be taken by owner |
| 1. | Front | 3.30 | 0.00 | 3.30 | 100% | This deviated portion width should be removed |
| 2. | Backside | 2.20 | 0.00 | 2.20 | 100% | -do- |
| 3. | Left | 1.00 | 0.00 | 1.00 | 100% | -do- |
| 4. | Right | 1.00 | 0.00 | 1.00 | 100% | -do- |
4. The petitioner was called upon to remove the deviations and was also afforded an opportunity to show cause as to why the said order was not to be confirmed and that if the authority were not to be satisfied by such explanation, the confirmatory order under Section 321(3) of the KMC Act would be passed. Subsequently, an order under Section 323(3) of the KMC Act had come to be passed on 26.9.2018 confirming the provisional order and calling upon the petitioner to remove the construction carried out in deviation of the sanction plan within a period of 7 days. The petitioner is said to have filed his objections to the notice that was issued earlier by the authorities.
5. The petitioner has challenged the said order of confirmation passed under Section 321 (3) of the KMC Act before the Karnataka Appellate Tribunal under Section 443 (A) of the KMC Act. The petitioner had also sought for stay of the operation and execution of the order of confirmation dated 26.9.2018 by way of an application under Regulation 13 of the Regulations. The Karnataka Appellate Tribunal had taken up the application filed under Regulation 13 for consideration. The BBMP which had entered caveat in the said proceedings, on being notified, had filed their objections to the application and had also furnished records pertaining to the order passed under Section 321(3) of the Act. An application was also filed by the impleading applicant who was sought to be impleaded in the said proceedings.
6. After having heard counsel on both the side, the Tribunal after referring to the deviation as mentioned in the provisional order while recording a finding that the BBMP had followed the procedure contemplated under the Karnataka Municipal Corporation ACT, 1966 in serving notice and pa
