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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Suraj Govindaraj, J.
Emerald Haven Development Ltd. - Petitioner
Versus
Assistant Director Town Planning (South) And Ors. – Respondents
Writ Petition No. 20852 of 2023 (LB-BMP)
Decided On : 01-12-2023
Encroachment - Jurisdiction of BBMP - Karnataka Municipal Corporations Act, 1976, BBMP Act, 2020 - [Section 303, Section 304, Section 238, Section 240] - The court considered the jurisdiction of BBMP to enquire into encroachment allegations, the applicability of Clause 45 of the terms of approval of the building plan, and the court's authority to adjudicate disputed facts when a suit is pending. The court held that BBMP does not have the power to enquire into encroachment allegations but can investigate deviations from the plan. It clarified that Clause 45 only applies to litigation pending at the time of plan sanction and cannot be invoked for subsequent litigation. The court also ruled that it cannot adjudicate disputed facts when a suit is pending. The impugned notice and proceedings were quashed, and the petitioner was bound by any orders passed in the pending civil suit.
Fact of the Case:
The petitioner sought relief from a notice issued by the BBMP based on encroachment allegations. The petitioner claimed ownership of land and had obtained plan sanction for construction. Respondent No.3 filed a complaint alleging encroachment, leading to the notice from BBMP. The petitioner challenged the notice, arguing that the BBMP lacked jurisdiction to enquire into encroachment and that the notice was without merit.
Finding of the Court:
The court held that BBMP does not have the authority to enquire into encroachment allegations but can investigate deviations from the plan. It clarified that Clause 45 only applies to litigation pending at the time of plan sanction and cannot be invoked for subsequent litigation. The court also ruled that it cannot adjudicate disputed facts when a suit is pending. The impugned notice and proceedings were quashed, and the petitioner was bound by any orders passed in the pending civil suit.
Issues: 1. Jurisdiction of BBMP to enquire into encroachment allegations. 2. Applicability of Clause 45 of the terms of approval of the building plan. 3. Court's authority to adjudicate disputed facts when a suit is pending.
Ratio Decidendi: The BBMP does not have the power to enquire into encroachment allegations but can investigate deviations from the plan. Clause 45 only applies to litigation pending at the time of plan sanction and cannot be invoked for subsequent litigation. The court cannot adjudicate disputed facts when a suit is pending. The impugned notice and proceedings were quashed, and the petitioner was bound by any orders passed in the pending civil suit.
Final Decision: The writ petition was allowed, and the impugned notice and proceedings were quashed. The petitioner was bound by any orders passed in the pending civil suit.
ORDER :
1. The petitioner is before this Court seeking for the following reliefs:
b. Issue a writ of certiorari or any other appropriate writ, order or direction quashing the entire proceedings pending before the Bruhat Bengaluru Mahanagara Palike instituted on the basis of the complaint dated 25.08.2023 filed by respondent No.3 vide Annexure-C against the petitioner; and
c. Pass any other order or direction as this Hon'ble Court deems necessary in the interests of justice and equity.
2. The petitioner claims to be the owner of 4 acres of land in Sy.No.63/2 to 63/6 of Basapura Village, Begur Hobli, Bengaluru South Taluk. As regards which the petitioner having obtained a plan sanction has commenced construction and put up around 18 floors excluding the basement floor.
3. On a complaint filed by respondent No.3 on 25.08.2023, respondent No.1-Assistant Director, Town Planning (South) issued a notice on 14.09.2023 stating that there is a complaint which has been received from respondent No.3 as regards 1 acre of land belonging to respondent No.3 having been encroached upon by the petitioner and in that background the respondent No.1 called upon the petitioner to furnish all the necessary documents relating thereto and answer the notice dated 14.09.2023. In the meanwhile, called upon the petitioner to stop further construction. It is aggrieved by the same, the petitioner is before this Court.
4. Sri. Udaya Holla, learned Senior Counsel appearing for the petitioner, would submit that;
4.1. the land in Sy. No.63/2 to 63/6 was earlier part of Sy. No.63 which in all measured 6 acres 31 guntas, out of which 4 acres was sold by the owner thereof on 17.02.1986 namely P.M.Krishnappa and P.M.Chennarayappa in favour of Sumedha Satish Khatkhate represented by the respondent No.3-Kavitha Vishwanath as power of attorney.
4.2. the said 4 acres were thereafter sold to various other persons and subsequently, those persons had entered into an agreement of sale with M/s.Duo Associates (Builders) Pvt. Ltd. Thereafter, the owners of the property, along with Duo Associates as a confirming party, executed a sale deed in favour of the petitioner on 29.04.2019 for the said extent of 4 acres and it is in pursuance thereof that the katha has been transferred in the name of the petitioner and construction taken up.
4.3. Even prior to the said sale, there was a conversion of land from agriculture to non-agriculture residential purposes, which took place on 25.01.2019. Katha came to be issued by the BBMP on 23.07.2019, and a building license and sanction plan came to be issued by BBMP on 21.04.2022. In January 2022, property was subjected to the provisions of the Real Estate Regulatory Authority, and construction commenced thereon.
4.4. After the construction was commenced, a suit was filed by respondent No.3 in O.S.No.581/2023 seeking a mandatory injunction to remove certain encroachments on the alleged property of respondent No.3 and declaration of respondent No.3 as an owner thereof. But however, in the schedule, it is stated that the property measures 3 acres 30 guntas situated in Sy. No.65/2 (which has to be rectified as part of Sy.No.63); this suit having been filed on 23.01.2023, he submits an interlocutory application for injunction restraining the petitioner from putting up construction in the property is also pending and arguments have already been advanced by the plaintiff therein i.e., respondent No.3 herein and the matter is scheduled for today (15.11.2023) for arguments of the petitioner.
4.5. The BBMP does not have any power to adjudicate as regards encroachment if at all, that would have to be adjudicated in the civil suit, which is pending. The BBMP cannot, on the basis of a complaint of
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