SRI BATHE GOWDA K V, ADVOCATE) v. BENGALURU-560 097

(BY SRI VIKRAM HULIGOL, SENIOR ADVOCATE A/W SRI BATHE GOWDA K V, ADVOCATE) …APPELLANTS VASANTHAKUMARY B K Location: High Court of Karnataka - 2 - NC: 2024:KHC:17735-DB WA No. 475 of 2023 AND:

SMT. ANJULAMMA D/O MR. T.H. MUNISHAMAPPA AGED ABOUT 65 YEARS RESIDING AT SURVEY NO. 43/6 THINDLU VILLAGE BENGALURU-560 097 …RESPONDENT (BY SRI UNNIKRISHNAN M, ADVOCATE) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 02.03.2023 PASSED IN WRIT PETITION NO.3653/2023 (LB-BMP). THIS WRIT APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING: JUDGMENT Heard learned Senior Advocate Mr. Vikram Huilgol assisted by learned advocate Mr. K.V.Bathe Gowda for the appellants and learned advocate Mr. M. Unnikrishnan for the respondent.

The Chief Commissioner and two other authorities of the Bruhath Bengaluru Mahanagara Palike (BBMP)-the original respondents, by filing this writ appeal under Section 4 of the Karnataka High Court Act, 1961, have addressed the challenge to - 3 - NC: 2024:KHC:17735-DB WA No. 475 of 2023 the order dated 02.03.2023, whereby learned Single Judge allowed the writ petition of the respondent herein-the original petitioner. The order dated 04.02.2023 passed by respondent No.1-appellant No.1 came to be set aside. Also was set aside the order dated

07.11.2022 passed by respondent No.3–appellant No.3.

The dispute and the controversy the writ petition surrounded the construction put up by the petitioner on Survey No.43/6, Thindlu Village, Bengaluru North Taluk. It was allegedly an unauthorized construction of a commercial shopping centre comprising of different shops. What was prayed in the writ petition was to set aside the orders passed by the competent authorities of the BBMP ordering demolition of the building on the ground that it was put up sans authorization and approved plans.

It appears that against the order dated 20.12.2021 passed by the Assistant Executive Engineer of the Sub-Division concerned treating the constructed building to be unauthorized and without supportive of approved plans, the petitioner filed Appeal No.104 of

2022. The Chief Commissioner considered the issue between the parties to notice inter alia that the xerox copy of the plan of the constructed building and other documents were produced, - 4 - NC: 2024:KHC:17735-DB WA No. 475 of 2023 however, the petitioner had not produced the originals of the said annexures nor certified copies were produced.

4.1 The case of the petitioner was noted by the Chief Commissioner in the order dated 10.06.2022 that the approval for the building was obtained on 18.03.1993 and that it was necessary to verify whether the building was constructed as per the referred plan or in violation of the plan. For the purpose of verifying the facts on that score, the appeal was allowed in part by remanding the case to the Assistant Executive Engineer, BBMP, Vidyaranyapura Sub-Division, Bengaluru, by setting aside the order dated

20.12.2021, further directing the Assistant Executive Engineer to consider the fact afresh and pass fresh order after examining the merits.

4.2 The Assistant Executive Engineer passed the order dated

07.11.2022 after undertaking the exercise of fresh examination of the controversy and after affording opportunity of hearing to both the sides. The Assistant Executive Engineer ultimately ordered, in exercise of the powers under Section 248(3) of the Bruhat Bengaluru Mahanagara Palike Act, 2020 (hereinafter referred to as ‘the 2020 Act’), to demolish the building, recording a finding that it - 5 - NC: 2024:KHC:17735-DB WA No. 475 of 2023 was constructed by the petitioner unauthorisedly. The petitioner was further directed to stop the construction.

4.3 The above order was carried in appeal before the appellate authority and the same was confirmed by the appellate order dated

04.02.2023. It was the said appellate order dated 04.02.2023 which was brought under challenge before learned Single Judge and came to be set aside by allowing the writ petition.

Having gone through the orders passed by the BBMP authorities standing in the background, the facts emerging and the documents available on record and upon considering the rival submissions, the Court notices inter alia that in the earlier process of consideration of the question whether the construction was supported by the plan/approved plan or not, the authorities have held against the petitioner. It was also sought to be pointed out that the approved plan never forthcame and what was produced was only xerox copies. It was further highlighted that under Section 248 of the 2020 Act, the Commissioner has powers to demolish or alter the building, the work of which may have unauthorisedly commenced, carried on or completed. - 6 - NC: 2024:KHC:17735-DB WA No. 475 of 2023

5.1 Now, while setting aside the order dated 04.02.2023 and allowing the writ petition, learned Single Judge recorded thus, which is the only part of the reasoning supplied,

2. The grievance of the petitioner is that, despite of plan having been sanctioned by Byatarayanapura Grama Panchayat on 18-8-1993, impugned order dated 4-2-2023 is being passed on the ground that there is no plan sanction which is obtained respondents. The construction having put up in the year 1993, after having obtained Byatarayanapura Grama Panchayat, I am of the considered opinion that the said plan sanctioned would be entitled to the benefit of the petitioner since the above land was approved by the B.B.M.P. only in the year 2007. Hence, the question of obtaining plan sanction from the B.B.M.P. will not at all arise.

sanction

5.2 As could be gathered from the compass of the controversy, it is several aspects and dimensions about the authenticity of the plan, whether the plan was approved or not, whether the BBMP could exercise the powers under Section 248 of the 2020 Act and whether the case of the original petitioner could be accepted that since the construction was put up only in the year 1993, any approval was not as such necessary. - 7 - NC: 2024:KHC:17735-DB WA No. 475 of 2023

In light of the issues arising as above and compass of the controversy which is indeed wider than reflected in the impugned order of learned Single Judge, the Court finds that the impugned order is cryptic and non-speaking. Learned Single Judge was expected to examine in its length and breadth all the issues arising as above and those others which may be argued by both the sides.

While this Court has not gone into the merits of the case of either side, since the order is found to be non-speaking and non- compliant in fully addressing the issues involved, the same is set aside only on the said ground. The proceedings of the writ petition are remanded to learned Single Judge for deciding the controversy afresh between the parties. The parties will be at liberty to file additional pleadings, if they so want.

It is expected that learned Single Judge will decide the writ petition expeditiously having regard to his own calendar.

It is provided that till the writ petition is decided, the parties shall maintain status quo with regard to the subject matter. The petitioner will not transfer, alienate or deal with in any manner the entire property, constructed portion and its segments in the nature - 8 - NC: 2024:KHC:17735-DB WA No. 475 of 2023 of shops or any other kind of construction, nor shall be permitted to alter the status.

9.1 It is clarified further that passing of the above restraint direction is not reflective on the merits of the case.

The appeal is accordingly allowed in part. In view of disposal of the appeal, the interlocutory application would not survive and it stands accordingly disposed of. Sd/- CHIEF JUSTICE Sd/- JUDGE BKV List No.: 1 Sl No.: 35