Writ Petition No. 22792 of 2016 · The High Court
Case Details
- 1 - NC: 2025:KHC:4930 WP No. 22792 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE N S SANJAY GOWDA WRIT PETITION NO. 22792 OF 2016 (LB-BMP) BETWEEN: 1. K B NISHAT ALIKHAN S/O K.M. BIRAMALLIKHAN AGED ABOUT 63 YEARS OCC: PRINCIPAL, HOLY CHILD ENGLISH SCHOOL, R/O PANTHAR-PALYA, MYSORE MAIN ROAD, NAYANDAHALLI, BANGALORE-560 039. (BY MS. LEKHA JAIN, ADVOCATE FOR SRI. SIDDHARTH SUMAN., ADVOCATE) AND: 1. THE KARNATAKA APPELLATE TRIBUNAL M.S. BUILDING, VIDHAN VEEDHI, BANGALORE-560 001, REP. BY ITS SECRETARY. 2. THE COMMISSIONER, BRUHAT BANGALORE MAHANAGAR PALIKE, HUDSON CIRCLE, BANGALORE-560 001. 3. THE ASSISTANT EXECUTIVE ENGINEER, CHANDRA LAYOUT SUB-DIVISION, BRUHAT BANGALORE MAHANAGAR PALIKE, 4TH MAIN ROAD, M.C. LAYOUT, VIJAYANAGAR, BANGALORE-560 079. Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA …PETITIONER
Legal Reasoning
(BY SRI. BOPANNA BELLIAPPA., AGA FOR R1; SRI. A JAGANATH, ADVOCATE FOR R2 & R3) …RESPONDENTS - 2 - NC: 2025:KHC:4930 WP No. 22792 of 2016 THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM R-1 KARNATAKA APPELLATE TRIBUNAL IN RESPECT OF APPEAL NO.190/2013 (BCC) VIDE ANNX-E AND ETC. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE N S SANJAY GOWDA 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 - 3 - NC: 2025:KHC:4930 WP No. 22792 of 2016 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 - 4 - NC: 2025:KHC:4930 WP No. 22792 of 2016 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. - 5 - NC: 2025:KHC:4930 WP No. 22792 of 2016 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. - 6 - NC: 2025:KHC:4930 WP No. 22792 of 2016 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 confirmation being passed against the petitioner. - 7 - NC: 2025:KHC:4930 WP No. 22792 of 2016 15. It is to be stated here that a structure, which is standing from 1989 cannot be demolished by the BBMP nearly after 35 years, more so, when the entire stretch of buildings in the street are built in violation of the building bye-laws and without any permission. The writ petition is therefore allowed and the impugned proceedings are quashed. 16. In view of the disposal of the petition, all pending
Decision
interlocutory applications, if any, stand disposed of. Sd/- (N S SANJAY GOWDA) JUDGE GSR List No.: 1 Sl No.: 10