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2023 Supreme(Online)(KAR) 23084
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2023
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.40936/2015 (LB-BMP)
BETWEEN:
1.
M/S. G.M. INFINITE DWELLING INDIA (P) LTD.,
HAVING ITS OFFICE AT NO.06
GM PEARL, BTM LAYOUT, 1ST STAGE
I PHASE, BANGALORE-560068
REP. BY ITS MANAGING DIRECTOR
SRI GULAM MUSTAFA
S/O GULAM RASUL
AGED ABOUT 39 YEARS.
2.
SMT. SHAKIRA BEGUM
W/O SAMIULLA SHARIFF
AGED ABOUT 59 YEARS
R/AT NO.20, SINDHI COLONY
II CROSS, WHEELERS ROAD,
BANGALORE-560005.
3.
SRI RAHAMATULLA KHAN
S/O LATE H AHMED ALI KHAN
AGED ABOUT 56 YEARS
R/AT NO.50, MILLERS ROAD
II CROSS, BENSION TOWN
BANGALORE-560046.
4.
SRI SHAFIULLA KHAN
S/O LATE H AHMED ALI KHAN
AGED ABOUT 54 YEARS
R/AT NO. 47/2, M K PALYA
M M ROAD CROSS, FRAZER TOWN
BANGALORE-560005.
5.
SMT. SHAHINA BEGUM
W/O LATE RAFIQ AHMED
AGED ABOUT 52 YEARS
2
R/AT NO. 43, LAZAR ROAD CROSS,
FRAZER TOWN, BANGALORE-560005
REPRESENTED BY HER GPA HOLDER
SMT. SHAKIRA BEGUM.
6.
SMT SHAMSHAD BEGUM
W/O ABDUL JABBAN
AGED ABOUT 50 YEARS
R/AT NO.4, K H LAKSHMINARAYAN LAYOUT
OIL MILL ROAD, ARVIND NAGAR
BANGALORE-560087.
7.
SRI NASEERULLA KHAN
S/O LATE H AHMED ALI KHAN
AGED ABOUT 47 YEARS
R/AT NO. 9/2, II CROSS
LALBAGH FORT ROAD
DODDAMAVALLI
BANGALORE-560004.
8.
SMT IRAFANA BEGUM
W/O LIYAKATH ALI BAIG
AGED ABOUT 47 YEARS
R/AT NO.8, M D M ROAD,
II CROSS, FRAZER TOWN
BANGALORE-560005.
9.
SMT. FARAH AFZAL
W/O AFZAL AHMED
AGED ABOUT 47 YEARS
R/AT NO.10, I MAIN,
ITI LAYOUT, BENSON TOWN
BANGALORE-560046.
10. SRI FASIULLA KHAN
S/O LATE H AHMED ALI KHAN
AGED ABOUT 44 YEARS
R/AT NO.5/1, 1-A
KENCHAPPA ROAD, FRAZER TOWN,
BANGALORE-560005.
11. SMT. NAZIMA BEGUM
W/O MUKARAM PASHA
AGED ABOUT 44 YEARS
R/AT NO. 22, BOUDILLON ROAD,
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FRAZER TOWN
BANGALORE-560005.
12. SRI NAVEEDULLA KHAN
S/O LATE H AHMED ALI KHAN
AGED ABOUT 39 YEARS
R/AT AMAN MANSION
NO.4, CLEVELAND ROAD
COLES ROAD CROSS, FRAZER TOWN
BANGALORE-560005.
13 . SMT. NAHID TARANUM AHMED
W/O MOHAMMED MUNAWAR AHMED
AGED ABOUT 37 YEARS
R/AT C/O SINGAPRE AIR LINES
P.O. BOX. NO. 25422
SAFAT 13115, KUWAIT,
PRESENTLY RESIDING AT BANGALORE
REPRESENTED BY HER GPA HOLDER
SMT. SHAKIRA BEGUM
(REPRESENT NOS.2 TO 13 ARE
REP. BY ITS BY ITS POWER OF ATTORNEY
HOLDER MR. GULAM MUSTAFA).
...PETITIONERS
(BY SRI M.S.RAJENDRA, ADV.)
AND:
1. THE ADMINISTRATOR
BRUHAT BANGALORE MAHANAGARA PALIKE
NARASIMHARAJA CIRCLE
BANGALORE-560002.
2. THE COMMISSIONER
BRUHAT BANGALORE MAHANAGARA PALIKE
NARASIMHARAJA CIRCLE
BANGALORE-560002.
3. THE ADDITIONAL DIRECTOR
(TOWN PLANNING)
BRUHAT BANGALORE MAHANGARA PALIKE
NARASIMHARAJA CIRCLE
BANGALORE-560002.
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4. THE ASSISTANT EXECUTIVE ENGINEER
BRUHAT BANGALORE MAHANGARA PALIKE
SHETTIHALLI SUB-DIVISION
DASARAHALLI RANGE
RAVEENDRANAGARA
NEAR GOVT. PRIMARY SCHOOL
BANGALORE.
5. SRI VENKATESH
S/O LATE BYLAPPA
AGED ABOUT 43 YEARS
R/O SHETTIHALLI VILLAGE
JANATA COLONY
JALAHALLI WEST POST
BANGALORE-560015.
…RESPONDENTS
(BY SRI B.V.MURALIDHAR, ADV. FOR R1 TO R4
SRI PRASAD B, ADV. FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET
ASIDE THE ORDER DATED 05.08.2015 ISSUED BY THE
ADMINISTRATOR, BBMP THE R-1 VIDE ANNX-T AND SET ASIDE
THE
The Administrator's order canceling the sanctioned plan was unsustainable because it was passed without providing an opportunity to the petitioner and without examining whether the pendency of civil suits would impede the sanction of the building plan or license.
Headnote:
BUILDING BYE-LAWS - [CANCELLATION OF SANCTIONED PLAN] - The court held that the Administrator's order canceling the sanctioned plan was unsustainable as it was passed without providing an opportunity to the petitioner and without examining whether the pendency of civil suits would impede the sanction of the building plan or license.
Fact of the Case:
The petitioner had obtained a sanctioned plan and building license from the BBMP in 2010. In 2014, the BBMP canceled the plan and license on the ground that the petitioner had suppressed the fact of a pending civil suit against the property. The petitioner appealed to the Standing Committee, which allowed the appeal. However, the Administrator reversed the Standing Committee's order and affirmed the cancellation of the plan and license.
Finding of the Court:
The court held that the Administrator's order was unsustainable because it was passed without providing an opportunity to the petitioner and without examining whether the pendency of civil suits would impede the sanction of the building plan or license.
Issues: Whether the Administrator's order canceling the sanctioned plan was sustainable.
Ratio Decidendi: The court held that the Administrator's order was unsustainable because it was passed without providing an opportunity to the petitioner and without examining whether the pendency of civil suits would impede the sanction of the building plan or license.
Final Decision: The court quashed the Administrator's order and directed the Council/Administrator to provide an opportunity to the petitioner and pass an appropriate order in accordance with law.
DATED
24.07.2014
ISSUED
BY
COMMISSIONER, BBMP THE R-2 HEREIN (ANNX-Q).
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
O R D E R
Petitioners are before this Court under Article 226
of the Constitution of India praying for a writ of
certiorari to quash the impugned order bearing
No.156/2015-16 dated 05.08.2015 passed by the
Administrator, BBMP (Annexure-T) and also to quash
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the
order
bearing
No.BBMP/Addl.Dir/JD
North/PR/3855/2014-15 dated 24.07.2014 (Annexure-
Q) whereby the sanctioned plan in favour of the
petitioners is cancelled; confirming the cancellation of
sanctioned plan by rejecting the resolution of the
Standing Committee.
2.
Heard Sri Rajendra, learned counsel for the
petitioners and Sri B.V. Muralidhar, learned counsel for
respondents 1 to 4. Perused the writ petition papers.
3.
Learned counsel for the petitioners would submit
that
the
schedule
property
was
converted
from
agricultural to non-agricultural residential purpose at
the instance of petitioners 2 to 13 by order dated
20.10.2018. Subsequently petitioners 2 to 13 entered
into a joint development agreement with 1st petitioner
for putting up a multistoried residential/commercial
complex on the schedule property. On 17.08.2009 the
1st petitioner submitted an application to the 2nd
respondent-Bruhat Bengaluru Mahanagara Palike (for
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short ‘the BBMP’) for sanction of building plan and for
issuance of building licence. The 2nd respondent-BBMP
on consideration of the application issued building
licence and sanctioned plan on 06.08.2010. Thereafter,
the 1st petitioner is said to have made application on
25.06.2011 for modification of the sanctioned plan. The
respondent-BBMP on 25.06.2011 sanctioned modified
plan. The 1st petitioner is said to have constructed
multistoried residential apartment over the schedule
property. It is submitted that the 5th respondent herein
had initiated proceedings against the petitioners 2 to 13
before the Tahsildar with regard to entry of their names
in the record of rights. The Tahsildar rejected the 5th
respondent’s claim after detailed enquiry. Petitioners 2
to 13 filed suit in O.S.No.1429/2018 before the City
Civil Court, Bangalore, particularly, for a decree of
permanent injunction and it is submitted that the Court
granted interim order of status quo restraining the 5th
respondent from interfering with peaceful possession of
the petitioners. It is submitted that 5th respondent also
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filed O.S.No.2295/2010 against petitioners 2 to 13
seeking declaration of title and the Court had granted
an order of injunction, which was subsequently vacated
on 12.05.2010. Challenging the vacation of the interim
order, the 5th respondent was before this Court in
M.F.A.No.4596/2010 and the same also came to be
dismissed. Thereafter on 30.05.2014 the 5th respondent
approached the Additional Director, Town Planning,
requesting to revoke the licence and sanctioned plan
granted in favour of the petitioners on the ground that
petitioners have suppressed material fact of status quo
operating while obtaining the sanctioned plan. Based
on the complaint of the 5th respondent show cause
notice dated 28/30.05.2014 was issued to the 1st
petitioner calling upon him to explain as to why
sanctioned plan and licence should not be cancelled for
suppression of fact. The 1st petitioner is said to have
submitted its reply on 23.06.2015 bringing to the notice
of the respondents that as on the date of submitting the
application, no interim order was operating against the
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petitioners or their property. The 2nd respondent-BBMP
under impugned order (Annexure-Q) dated 24.07.2014
cancelled the sanctioned plan as well as the building
licence, against which the 1st petitioner is said to have
filed appeal before the Standing Committee. The
Standing Committee by its order dated 17.03.2015 held
that the impugned order dated 24.07.2014 passed by
the Commissioner is illegal and unsustainabl
