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2025 Supreme(Online)(KAR) 194
HIGH COURT OF KARNATAKA
N S SANJAY GOWDA, J
K B NISHAT ALIKHAN – Appellant
Versus
THE KARNATAKA APPELLATE TRIBUNAL – Respondent
WP 22792 of 2016
The court ruled that a structure built before the jurisdiction of the BBMP cannot be demolished after decades, especially when similar violations exist in the area.
Headnote:(A) Karnataka Municipal Corporations Act, 1976 - Building Bye-Laws - Provisional order issued against petitioner for construction without sanction - Petitioner contended construction predates BBMP jurisdiction and neighbor's encroachment - No action taken against neighbor despite complaints - Court found mala fide initiation of proceedings against petitioner - Construction from 1989 cannot be demolished after 35 years, especially when similar violations exist in the area. (Paras 2, 5, 13, 15)
(B) Jurisdiction - The authority of the BBMP to act against constructions predating its jurisdiction is questioned, highlighting the principle of fairness in administrative actions. (Paras 5, 15)
Facts of the case:
The petitioner challenged a provisional order regarding a structure built in 1989-90, asserting it was before BBMP's jurisdiction and that he faced inaction on his complaints against a neighbor's encroachment.
Findings of Court:
The court found the proceedings against the petitioner to be mala fide, emphasizing that a structure standing for decades cannot be demolished without just cause, especially when similar violations are prevalent.
Issues: The main issues included the legitimacy of the BBMP's actions against the petitioner and the implications of the neighbor's construction on the proceedings.
Ratio Decidendi: The court ruled that the initiation of proceedings against the petitioner was unjustified and mala fide, given the long-standing nature of the construction and the lack of action against similar violations in the area.
Result: Writ petition allowed; proceedings quashed.
ORAL ORDER
1. The petitioner is aggrieved by the confirmatory order that was passed against him and also against its confirmation in appeal by the Karnataka Appellate Tribunal.
2. A provisional order was issued to the petitioner on 16.01.2013, contending that the construction that the petitioner had put-up on his property was in violation of the building bye-laws and without obtaining a sanction plan.
3. In response, the petitioner filed objections, in which, two contentions were advanced. The first contention was that, he had constructed the structure in the year 1989-90, much before the area came within the jurisdiction of the Bruhat Bengaluru Mahanagara Palike ('the BBMP') and secondly, he contended that his neighbor had encroached an extent of 2 ft. of his property and was putting-up a construction and when he gave a complaint in that regard, the BBMP, instead of taking action against them had proceeded to issue a provisional order.
4. It may also be pertinent to state here that the petitioner has produced a complaint dated 10.12.2012, given to the Superintendent of Police, Bangalore Metropolitan Task Force (BMTF), in which, the allegation that the petitioner made was that, the neighbor of his had started construction on the first floor and when he objected, there was no response and even a complaint was given to the Assistant Executive Engineer did not result in any action.
5. These two facts by themselves indicate that the genesis of the dispute arose when the complaint was lodged by the petitioner against their neighbor. There is absolutely nothing on record to indicate the action that was taken against the neighbor, but nevertheless, proceedings have been initiated against the petitioner. The provisional order has been confirmed on the ground that there was no sanctioned plan and the building was constructed in violation of the bye-laws. This finding has been affirmed by the Appellate Tribunal.
6. The petitioner has filed documents such as tax paid receipts to indicate that the construction was put-up in the year 1989-90 as per Annexure – G, G1, G2 and G3. It is also not seriously disputed by the BBMP that the construction of the petitioner was in year 1989-90, much before the BBMP assumed jurisdiction over this particular area.
7. This Court, after noticing the photographs that were produced, which also indicated that every house in the street had not left any setback, directed the concerned Engineer to file an affidavit.
8. In response, the Assistant Executive Engineer has filed an affidavit, in which he has stated as follows:
“3. I state that during the course of Inspection, it is found that the houses constructed adjacent to the Schedule Premises as well as most of the adjacent houses constructed in the vicinity have not left setbacks except for a few houses which have left partial setbacks. The size of the plots in the vicinity are also small in size, and hence, they are constructed abutting each other.”
9. As could be seen from the above, the Assistant Executive Engineer admits that most of the adjacent houses constructed in the vicinity have not left setbacks except for a few houses which have left partial setbacks.
10. He has also gone on to state that the size of the plots in the vicinity were small in size and, hence, they were constructed abutting each other.
11. In essence, the AEE seeks to justify the construction made by the neighbors on the ground that the plots were small in size.
12. As already noticed above, the construction in question was put-up in the year 1989-90, much before the land came within the purview of the BBMP.
13. In my view, when the construction was put-up in the year 1989-90, initiation of action in the year 2013 and that too in the background of the fact that the petitioner had lodged a complaint against the neighbors indicates that the entire proceedings was mala fide.
14. I am therefore the view that there is no justification to uphold the proceedings, which has resulted in an order of confirmat
