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2024 Supreme(Online)(KAR) 35498
HIGH COURT OF KARNATAKA
B M SHYAM PRASAD, J
SMT.VIMALA PARAMATHMUNI – Appellant
Versus
THE CHIEF COMMISSIONER – Respondent
WP 30248 of 2024
Proceedings under the BBMP Act require due notice and proper inspection before action can be taken against property owners.
Headnote:(A) Bruhat Bengaluru Mahanagara Palike Act, 2020 - Sections 248 and 253 - Provisional and Confirmation Orders - The petitioner challenges the orders alleging deviations in construction without due notice and proper inspection - The court allows the petitioner to file for compounding deviations in building height and FAR. (Paras 1-4)
(B) Procedural Fairness - The court emphasizes the necessity of due notice and proper inspection before initiating proceedings against the petitioner. (Paras 3-4)
Facts of the case:
The petitioner challenges the BBMP's orders regarding alleged deviations in construction, asserting lack of notice and proper inspection.
Findings of Court:
The court allows the petitioner to apply for compounding deviations and ensures no coercive measures until the application is considered.
Issues: The main issue is whether the BBMP acted without due notice and proper inspection in initiating proceedings against the petitioner.
Ratio Decidendi: The court ruled that proceedings under the BBMP Act must follow due process, including proper notice and inspection before any action is taken against the petitioner.
Result: The petition stands disposed of, allowing the petitioner to file for regularization.
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| 1. proceedings require due process (Para 4) |
ORAL ORDER
The petitioner is the owner of the property bearing No. 48, PID No. 62-123-48, 3rd Main Road, I Block Jayanagar, BBMP Ward No. 153, Bengaluru [the Subject Property]. The petitioner has filed this petition calling in question the Provisional Order dated 05.08.2023 and the Confirmation Order dated 16.08.2023 under the provisions of the Bruhat Bengaluru Mahanagara Palike Act, 2020 [for short, the 'BBMP Act'] and the first respondent's order dated 01.06.2024 dismissing the petitioner's Appeal in No. 189/2023 which is under Section 253 of the BBMP Act.
2. The proceedings under Section 248 of the BBMP Act are initiated alleging certain deviations in the first and second floors in the construction commenced by the petitioner in the Subject Property while observing the construction is underway. This Court on 13.11.2024 has called upon the jurisdictional Assistant Executive Engineer, BBMP to visit the subject property to verify the details of the deviations as mentioned in the Provisional/ Confirmation Order with reference to the construction as it exists now while directing the respondents [BBMP/ its Officials] not to take any precipitous action. In compliance with this direction, the jurisdictional Assistant Executive Engineer has inspected the Subject Property and has filed a Report stating amongst others that there is no deviation in the setback areas but there are deviations in the building height [5.26%] and in the FAR [7.64%]. 3. Sri Muniraja M, the learned counsel for the petitioner, and Sri Pawan Kumar, the learned counsel for the BBMP/ its officers, are heard in view of the Report now placed on record and the petitioner's essential grievance is that the proceedings under Section 248 of the BBMP Act are commenced without due notice to the petitioner and without even a proper inspection of the construction.
4. This Court, if it is ultimately ascertained after due notice to the petitioner that there are no deviations in the setbacks but there is marginal deviation in the height and FAR which would be compounded under Bye-law No. 6 of the BBMP Building Bye-laws 2003, must opine that, notwithstanding the impugned proceedings the petitioner must be at liberty to file appropriate application for compounding of the deviations and the same must be considered in the light of the details as verified in the inspection permitted by this Court and that until the petitioner's application for compounding is considered there cannot be any coercive measure. Hence, the following
ORDER
[A] The petition stands disposed of reserving liberty to the petitioner to file an application [in the prescribed Form, if the Form is prescribed] with the competent from the BBMP seeking regularization of the deviation in the Building Height [5.26%] and in FAR [7.64%] as ascertained.
[B] The petitioner will be at liberty to file such application within four [4] weeks from the date of receipt of a certified copy of this order and a copy of the report that is filed into this Court, and if the petitioner files such application with all the details, the concerned from the BBMP shall consider the same and pass just orders, and until then there shall be no precipitation.
