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2023 Supreme(Kar) 518
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
SURAJ GOVINDARAJ, J.
Sri. Aslam Pasha, S/o. Sayed Makmul Ahmed – Petitioner
Versus
Chief Commissioner Appellate Authority, Bruhat Bangalore Mahanagara Palike and Ors. – Respondents
Writ Petition No. 21775 Of 2023 (LB-BMP)
Decided On : 27-09-2023
For the Petitioner: Sri. Mallikarjun M.N.
For the Respondents: Sri. Pawan Kumar.
The Assistant Executive Engineer does not have the power to issue notices and confirmatory orders under Sections 248(1), 248(2), and 248(3) of the BBMP Act, 2020. The BBMP should verify documents from its own records before alleging non-compliance.
Headnote:
BBMP Act, 2020 - Sections 248(1), 248(2), 248(3) - The court examines the powers of the Assistant Executive Engineer to issue notices and confirmatory orders under these sections. It also emphasizes the need for the BBMP to verify documents from its own records before alleging non-compliance. The court directs the BBMP to formulate a mechanism for document availability and digitization of old records.
Fact of the Case:
The petitioner is seeking to quash certain orders issued under the BBMP Act, 2020 regarding the construction on their property. The petitioner claims to be the owner of the property and had entered into a joint development agreement. Notices were issued by the BBMP under Section 248 of the Act, and the petitioner filed an appeal. The appeal was disposed of, holding the construction as unauthorized. The petitioner challenges this decision.
Finding of the Court:
The court examines two main points: 1) whether the notices and confirmatory order can be issued by the Assistant Executive Engineer, and 2) whether the BBMP can confirm the provisional order based on the non-production of plan sanction and other documents. The court finds that the Assistant Executive Engineer does not have the power to issue the notices and confirmatory order, and that the BBMP should have verified the documents from its own records. The court directs the BBMP to formulate a mechanism for making documents available to authorized officers and to initiate digitization of old records.
Ratio Decidendi: The notices and confirmatory order issued by the Assistant Executive Engineer are invalid. The BBMP should verify documents from its own records before alleging non-compliance. The BBMP is directed to formulate a mechanism for document availability and digitization of old records.
Result: The writ petition is allowed, and the provisional and confirmatory orders are quashed. The Zonal Commissioner is given liberty to take necessary action by stating any deviations from the sanctioned plan. The order in the appeal is also quashed. Compliance with the directions is to be reported on a specified date.
ORDER :
1. Sri.Pawan Kumar., learned counsel is directed to accept notice for respondents No.1 and 2. Notice to respondent No.3 is dispensed with on account of the order proposed to be passed.
2. The petitioner is before this Court seeking for the following reliefs;
a. Issue writ in the nature of certiorari quashing the order dated 17.6.2023 passed in Appeal No.7/2023 by the respondent No.1-Chief Commissioner, Bruhat Bangalore Mahanagara Palike, vide Annexure-A.
b. Consequently, set aside the provisional order dated 28.06.2023 passed under Section 248(1) of BBMP Act, 2020 bearing No.SAM.B.B.M.P/SA.KA.A/H.A.L U.V/P.R No. 51/21-22 by the respondent No.2 vide Annexure-H, and
c. Set aside the Confirmation Order passed under Section 248(3) of BBMP Act, 2020 dated 13.07.2022 bearing No. SAM.B.B.M.P/SA.KA.A./H.A.L Airport Subdivision /C.O/57/2022-23 passed by the respondent-2 vide Annexure-J.
d. Pass such other as this Hon’ble Court deems fit in the facts and circumstances of the above case, in the interest of justice and equity.
3. The petitioner claims to be the absolute owner of site No.20 carved out in old Sy. No.115/6A having katha No.6380, totally measuring 6588.75 sq. ft. situate at Annasandra Palya, Vibuthipura Dakle, KR Puram Hobli, Bengaluru East Taluk having purchased the same under the registered sale deed on 27.1.2011.
4. The petitioner had entered into a joint development agreement on 27.8.2020 with the developer M/s Hindustan Developers who had applied for and obtained a sanction plan and building licenses from Assistant Director Town Planning (ADTP), BBMP. On account of a complaint having been filed against the said construction notices has been issued under Section 313 of BBMP Act, 2020 followed by notices under Section 248(1), 248(2) and Confirmatory Order under Section 248(3) of the BBMP Act, 2020.
5. The respondent No.3 being aggrieved by the inaction on part of the BBMP had approached this Court in WP No.23444/2020 which came to be disposed by this Court vide order dated 13.9.2023 permitting the petitioner and the developers to challenge the notices issued under Section 248(1), 248(2) and 248(3) and until then restrain the respondents from taking coercive steps.
6. Before the order could be passed, the petitioner had already filed an appeal in Appeal No.7/2023 which came to be disposed by order dated 17.6.2023 on the ground that the petitioner had not produced the plan sanction in respect of such property and in that view of the matter, it was held that the construction was unauthorized. It is challenging the same that the petitioner is before this Court seeking for the aforesaid reliefs.
7. Heard Sri.Mallikarjun.N.K., learned counsel appearing for the petitioner and Sri.Pawan Kumar., learned counsel appearing for respondents No.1 and 2. perused papers.
8. The points that would arise for consideration are :
1. Whether the notices under Section 248 (1) and 248 (2) and the confirmatory order under Section 248 (3) of the BBMP Act, 2020 can be issued by the Assistant Executive Engineer?
2. Whether the BBMP can on the ground that plan sanction and other documents have not been furnished by the noticee confirm the provisional order?
3. What order?
9. I answer the above points as under.
10. Answer to point No.1: Whether the notices under Section 248 (1) and 248 (2) and the confirmatory order under Section 248 (3) of the BBMP Act, 2020 can be issued by the Assistant Executive Engineer?
10.1. The notices which have been issued under 248(1) and 248(2) as also the confirmation order under Section 248(3) have been issued by the Assistant Executive Engineer and Competent Authority viz., respondent No.2 and not by Zonal Commissioner as required under Section 248. The Assistant Executive Engineer does not have the power under Section 248 to issue either the notices or the confirmatory order as held by this Court in Smt. Kavitha Jain & another Vs. The Commissioner & Others, WP No.9934 of 2023, dated 17.08.2023 in that view of the m
