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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JUNE, 2022
BEFORE
THE HON’BLE MR. JUSTICE R. NATARAJ
WRIT PETITION NO.25949 OF 2014 (LB-BMP)
BETWEEN:
BRUHATH BANGALORE MAHANAGARA PALIKE
N.R. SQUARE,
BANGALORE.
REPRESENTED BY ITS
COMMISSIONER
…PETITIONER
(BY SRI. PRASHANTH CHANDRA S.N., ADVOCATE (THROUGH
VC))
AND:
1.
SRI. T.R. RAJAN
S/O T.N. RAMACHANDRA SHETTY
AGED ABOUT 59 YEARS
2.
M/S INFOTECH ENTERPRISES
REPRESENTED BY ITS
EXECUTIVE VICE PRESIDENT
MR. B. ASHOK REDDY
S/O LATE MR. B. NAGI REDDY
AGED ABOUT 45 YEARS
BOTH AT NO.138, 60 FEET ROAD
5TH BLOCK, KORAMANGALA EXTENSION
BANGALORE-560 095.
…RESPONDENTS
(BY SRI. R. RAMA MURTHY, ADVOCATE FOR RESPONDENT
NO.1;
2
VIDE ORDER DATED 10.06.2022, SERVICE OF NOTICE TO
RESPONDENT NO.2 IS DISPENSED WITH)
THIS PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER DATED 18.12.2013, PASSED BY THE
KARNATAKA APPELLATE TRIBUNAL IN APPEAL NO.1373/2005
VIDE ANNEXURE-F AND BY CONFIRMING THE ORDERS PASSED
BY THE ASSISTANT EXECUTIVE ENGINEER, KORAMANGALA SUB
DIVISION
AND
DELEGATED
AUTHORITY
TO
THE
COMMISSIONER, BANGALORE MAHANAGARA PALIKE, IN CASE
NO.AEE(KML)C.O/62/2005-06, UNDER SECTION 321(3), DATED
14.11.2005 AT ANNEXURE-D.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:
The petitioner has challenged an order dated
18.12.2013 passed by the Karnataka Appellate Tribunal
(henceforth referred to as 'Tribunal' for short) in Appeal
No.1373/2005, by which it up-set an order dated
14.11.2005 passed by the Assistant Executive Engineer,
Koramangala Sub-Division and delegated authority of the
Commissioner, Bangalore Mahanagara Palike under Section
321(3) of the Karnataka Municipal Corporations Act, 1976
(henceforth referred to as "KMC Act, 1976" for short).
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The respondents were licenced to construct a
residential building on the property bearing No.138, 5th
Block, Koramangala Extension, Bengaluru City, in terms of
a plan that was duly sanctioned on 07.06.2000. It is
stated that the respondents, instead of constructing a
residential building, had constructed a commercial complex
violating the Zonal regulations as well as the plan that was
sanctioned. In the light of a public interest litigation filed
before this Court, notices were issued to the respondents
under Sections 321(1) and 321(2) of the KMC Act, 1976
setting out the following violations:-
Sl.
No.
Description
As per the
Sanctioned
plan
As per
Actuals
Deviation
from the
sanctioned
plan
% of
Deviation
Remarks
Set Backs
Front
Rear
Right
Left
5.00m
3.50m
3.50m
2.80m
5.00m
3.40m
3.50m
2.50m
-
0.10m
-
0.30m
3.61% as
against to
sanctioned
plan
Coverage
44.20%
47.16%
3
F.A.R.
1.25
1.33
4
Zoning
Regulations
Residential
Commercial
(Software
office)
The
building
has
been
constructed
violating
set
backs
byelaws &
used
for
commercial
purpose
violating
zoning
regulations
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3.
The notice under Sections 321(1) and 321(2)
of the KMC Act, 1976 was served on the respondents. An
objection was filed by the respondent No.1 on 15.10.2005
requesting the Assistant Executive Engineer, Koramangala
Sub-Division, to drop all further proceedings. The
Assistant Executive Engineer, Koramangala Sub-Division,
not being satisfied with the objection filed by the
respondents, passed an order under Section 321(3) of the
KMC Act, 1976. The respondents filed an appeal under
Section 443-A of the KMC Act, 1976 before the Tribunal,
who after hearing the petitioner, passed an order setting
aside the confirmation order passed under Section 321(3)
and directed the petitioner to consider and dispose off the
case afresh after affording sufficient opportunity. During
the course of the said order, the Tribunal stated as
follows:-
"This apart, the impugned order does not
beckon as to whether R2 did take any pain of
answering as to the assessment of tax at
Rs.6/- per Sq.Ft. per month made by R1 in
respect of the property in question under a
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Self-Assessment Scheme, which was said to
have been opted by the appellants and the
impugned order is nothing but a wishy-washy
one, which does not answer to the main
contentions urged by the appellants in their
reply notice as stated supra. Hence, without
touching the merits of the case, we arrive at
an irresistible conclusion that the impugned
order is not sustainable under law and the
matter needs to be remanded back to R1 to
dispose of the same afresh in accordance with
law after affording the sufficient opportunity to
the appellants of being head. Hence, we
answer Point No.1 in the Negative."
4.
The learned counsel for the petitioner submits
that the reason assigned by the Tribunal to allow the
appeal is thoroughly unjustified as assessment of the
property in question cannot result in condoning the
violation.
5.
The learned counsel for the respondent No.1 is
absent and this court did not have the benefit of
considering his contentions.
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6.
Be that as it may, since the only indulgence
sought for, by the petitioner is to set aside the findings
recorded by the Tribunal for allowing the appeal, this Court
considers it appropriate to allow the petition for the simple
reason that the assessment of the building would not
result in condoning the violation of the 'Building Bye-Laws'
as well as Zonal regulations.
7.
In that view of the matter, the
