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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
SURAJ GOVINDARAJ, J.
M. CHANDRAKUMAR S/O E. MARUTHACHALAM – Petitioner
Versus
THE COMMISSIONER THE BRUHATH BANGALORE – Respondent
Writ Petition Nos. 20546, 47122, 47406, 48000, 55716, 55717, 55718, 55719 of 2017
Decided On : 04-01-2024
Building Bye-laws - Violation of Building Bye-laws - Sections 308, 321, 462 of KMC Act - The court held that the Corporation Officers can seek for providing of documents in old matters which are not digitised. However, as regards the documents which are digitized and available with the Corporation and any other instrumentality of the State, suitable mechanism should be made available to such officers to secure the documents not only for the purpose of considering the same but for verification of the documents with the documents if any furnished by the noticee. The Provisional Order under Sub-Section (1) of Section 321 of the KMC Act and now under Sub-Section (1) of Section 248 of BBMP Act, 2020 are serious matters which relate to and deal with demolition of a property on account of illegal and unauthorised construction or construction carried out in violation of the sanctioned plan, Building Bye-Laws etc. The fact that the action under Sub-Section (1) of Section 321 of KMC Act and under Sub-Section (1) of Section 248 of BBMP Act, 2020 is treated as a Provisional Order would indicate the value attached to such an action to be an order and not a mere a notice. Thus, whenever a Provisional Order is to be passed, the Provisional Order should contain all the relevant details and should have been so passed after following the applicable law relating to passing an order, though albeit a provisional one. The Provisional Order should contain the details of such violation vis-a-vis both the sanction plan if issued as also the Building Bye-laws even if a sanction plan has been issued or not. This would aid and assist the Court to also ascertain if the sanctioned plan was so sanctioned in accordance with the Building Byelaws or not. The Corporation and its officers would have to strictly comply with the principles enshrined in Article 14 of the Constitution of India and treat everyone equally and not to discriminate against the other on the basis of the complaint. The Officers of the corporation or the corporation itself cannot be treated as a pawn or a stooge of private parties and act on their behalf. A statutory organization like the BBMP has been established to serve the interests of the citizens in general and not a few powerful persons. The corporation officials are required to and are advised to act in accordance with law, failing which the law will have to take necessary steps to bring such officers in conformity with law.
Fact of the Case:
The petitioners claimed to be the owners and in possession of their respective residential plots formed by REMCO (BHEL) Cooperative Housing Society in the year 1992. They produced their respective allotment letter, possession certificate issued by the Society, copy of the sale deed registered with the Sub-Registrar, katha certificate and tax paid receipt issued by the local authority. The petitioners claimed that they constructed a compound wall and a shed in the property to secure the same from the encroachers and trespassers. The layout has been formed by the Society on the land acquired by the State of Karnataka on behalf of the Society. Certain land owners having challenged the said acquisition, this Court set aside the said acquisition on the ground that the same has not been done in accordance with law. Considering that the layout had been fully formed and allottees had constructed their respective houses, the society approached the land owners offered them additional consideration in pursuance of which relinquishment deeds were executed by such land owners in favour of the Society, which includes the lands in which the plots of the Petitioners is situate.
Finding of the Court:
The court found that the Corporation Officers can seek for providing of documents in old matters which are not digitised. However, as regards the documents which are digitized and available with the Corporation and any other instrumentality of the State, suitable mechanism should be made available to such officers to secure the documents not only for the purpose of considering the same but for verification of the documents with the documents if any furnished by the noticee. The Provisional Order under Sub-Section (1) of Section 321 of the KMC Act and now under Sub-Section (1) of Section 248 of BBMP Act, 2020 are serious matters which relate to and deal with demolition of a property on account of illegal and unauthorised construction or construction carried out in violation of the sanctioned plan, Building Bye-Laws etc. The Corporation and its officers would have to strictly comply with the principles enshrined in Article 14 of the Constitution of India and treat everyone equally and not to discriminate against the other on the basis of the complaint. The Officers of the corporation or the corporation itself cannot be treated as a pawn or a stooge of private parties and act on their behalf. A statutory organization like the BBMP has been established to serve the interests of the citizens in general and not a few powerful persons. The corporation officials are required to and are advised to act in accordance with law, failing which the law will have to take necessary steps to bring such officers in conformity with law.
Issues: The issues revolved around the legality of the notices issued by the Corporation, the compliance with Building Bye-laws, and the alleged collusion between the Corporation officials and private parties.
Ratio Decidendi: The court held that the Corporation Officers can seek for providing of documents in old matters which are not digitised. However, as regards the documents which are digitized and available with the Corporation and any other instrumentality of the State, suitable mechanism should be made available to such officers to secure the documents not only for the purpose of considering the same but for verification of the documents with the documents if any furnished by the noticee. The Provisional Order under Sub-Section (1) of Section 321 of the KMC Act and now under Sub-Section (1) of Section 248 of BBMP Act, 2020 are serious matters which relate to and deal with demolition of a property on account of illegal and unauthorised construction or construction carried out in violation of the sanctioned plan, Building Bye-Laws etc. The Corporation and its officers would have to strictly comply with the principles enshrined in Article 14 of the Constitution of India and treat everyone equally and not to discriminate against the other on the basis of the complaint. The Officers of the corporation or the corporation itself cannot be treated as a pawn or a stooge of private parties and act on their behalf. A statutory organization like the BBMP has been established to serve the interests of the citizens in general and not a few powerful persons. The corporation officials are required to and are advised to act in accordance with law, failing which the law will have to take necessary steps to bring such officers in conformity with law.
Final Decision: The court allowed the writ petitions and quashed the orders/notice dated 04.09.2017 passed by respondent No. 2. The matters were remitted to respondent No. 1 for fresh consideration from the stage of provisional order issued under sub-section (1) of Section 321 and show cause notice under sub-section (2) of section 321. The petitioners were also permitted to apply for plan sanction in terms of the applicable Building Bye-laws and the construction put up thereon, which shall be considered by the officers of the Corporation strictly in accordance with building Bye-laws and if the application for plan sanction complies with the building Bye-laws and all other requirements to sanction the same within a period of 30 days thereafter. Enquiry report in terms of Para 32.2 to be filed by Chief Commissioner respondent No. 1 within a period of 90 days from the date of the judgment.
ORDER :
1. The petitioner in W.P. No. 55716/2017 is before this Court seeking for the following reliefs:
(b) And pass such other orders as this Hon’ble court deems fit and proper the interest of justice and equity.
2. The petitioner in W.P. No. 20546/2017 is before this Court seeking for the following reliefs:
(b) Pass such other orders as may be deemed appropriate under the circumstances of the case, in the ends of justice.
3. The petitioner in W.P. No. 47122/2017 is before this Court seeking for the following reliefs:
(b) And pass such other orders as this Hon'ble Court deems fit and proper in the interest of justice and equity.
4. The petitioner in W.P. No. 47406/2017 is before this Court seeking for the following reliefs:
(b) Grant Costs.
(c) Such other relief/s as this Hon'ble Court deems fit to grant in the facts and circumstances of the case and in the interest of justice and equity.
5. The petitioner in W.P. No. 48000/2017 is before this Court seeking for the following reliefs:
(b) And pass such other orders as this Hon'ble Court deems fit and proper in the interest of justice and equity.
6. The petitioner in W.P. No. 55717/2017 is before this Court seeking for the following reliefs:
(b) And pass such other orders as this Hon'ble Court deems fit and proper in the interest of justice and equity.
7. The petitioner in W.P. No. 55718/2017 is before this Court seeking for the following reliefs:
(b) And pass such other orders as this Hon'ble Court deems fit and proper in the interest of justice and equity.
8. The petitioner in W.P. No. 55719/2017 is before this Court seeking for the following reliefs:
(b) And pass such other orders as this Hon'ble Court deems fit and proper in the interest of justice and equity.
9. In each of the above matters, the petitioners claim to be the owners and in possession of their respective residential plots formed by REMCO (BHEL) Cooperative Housing Society in the year 1992. Each of the above petitioners have produced their respective allotment letter, possession certificate issued by the Society, copy of the sale deed registered with the Sub-Registrar, katha certificate and tax paid receipt issued by the local authority. The petitioners claim that they constructed a compound wall and a shed in the property to secure the same from the encroachers and trespassers.
10. The layout has been formed by the Society on the land acquired by the State of Karnataka on behalf of the Society. Certain land owners having challenged the said acquisition, this Court set aside the said acquisition on the ground that the same has not been done in accordance with law. Considering that the layout had been fully formed
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