HIGH COURT OF KARNATAKA (BY SMT. SYEDA SHEHNAZ, ADVOCATE FOR SRI v. BALAKRISHNA
Case Details
- 1 - NC: 2025:KHC:17374 WP No. 17221 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE N S SANJAY GOWDA WRIT PETITION NO. 17221 OF 2024 (LB-BMP) BETWEEN: SRI. REHAN SIDDIQ S/O SRI A.R. KAMARUDDIN AGED ABOUT 57 YEARS R/AT NO. 450, 18TH MAIN ROAD JAYANAGAR, 4TH T BLOCK BENGALURU - 560041. REPRESENTED BY HIS GPA HOLDER SRI ABDUL REHMAN KAMARUDDIN S/O LATE K. KAMARUDDIN AGED ABOUT 84 YEARS R/AT NO. 450, 18TH MAIN ROAD JAYANAGAR, 4TH T BLOCK BENGALURU - 560041. …PETITIONER Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA (BY SMT. SYEDA SHEHNAZ, ADVOCATE FOR SRI. V. BALAKRISHNA, ADVOCATE) AND: 1. THE COMMISSIONER OFFICE OF THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE BANGALORE - 560002. 2. ASSISTANT EXECUTIVE ENGINEER ARAKERE SUB DIVISION BRUHAT BENGALURU MAHANAGARA PALIKE NYATAPPA LAYOUT - 2 - NC: 2025:KHC:17374 WP No. 17221 of 2024 AREKERE, BDA ROAD BANGALORE - 560076. 3. SRI. V.V. MADHUSUDHANA RAO S/O LATE V. VEERABHADRA RAO AGED ABOUT 66 YEARS NO. 70/A, HARI PRIYA NANJUNDESHWARA HSBC LAYOUT, J P NAGAR, 5TH PHASE 15TH MAIN ROAD, 17TH D CROSS BENGALURU – 560078. 4. SRI. ARAVIND K. SASTRY S/O T.N. KRISHNAMURTHY AGED MAJOR NO. 204, HARI PRIYA NANJUNDESHWARA HSBC LAYOUT, J P NAGAR, 5TH PHASE 15TH MAIN ROAD, 17TH D CROSS BENGALURU - 560078. 5. MR. RAVI ASSISTANT EXECUTIVE ENGINEER ARAKERE SUBDIVISION BRUHAT BENGALURU MAHANAGARA PALIKE NYATAPPA LAYOUT, AREKERE BDA ROAD, BANGALORE-560076. 6. MR. KANTHA RAJ ASSISTANT EXECUTIVE ENGINEER BRUHAT BENGALURU MAHANAGARA PALIKE BANGALORE-560002. 7. MR. SATHYA ASSISTANT ENGINEER BRUHAT BENGALURU MAHANAGARA PALIKE BANGALORE-560 02. 8. SRI. K. DEVEGOWDA ASSISTANT ENGINEER/JUNIOR ENGINEER BRUHAT BENGALURU MAHANAGAR PALIKE BANGALORE-560002. - 3 - NC: 2025:KHC:17374 WP No. 17221 of 2024
Legal Reasoning
9. SRI. C.T. ANJANAPPA ASSISTANT EXECUTIVE ENGINEER BRUHAT BENGALURU MAHANAGARA PALIKE BANGALORE-560002. …RESPONDENTS (BY SRI. K.V. BATHE GOWDA, ADVOCATE FOR R1 AND R2; SRI. V.V. MADHUSUDANA RAO, R3 – PARTY IN PERSON; SRI. ARAVIND K. SASTRY, R4 – PARTY IN PERSON; SRI. KUMAR .K.G, ADVOCATE FOR R5; SRI. BRIJESH PATIL, ADVOCATE FOR R6; SRI. HARISH .N.R, ADVOCATE FOR R7; SRI. S. RAJU, ADVOCATE FOR R9) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER PASSED BY KAT IN APPEAL NO. 243/2021 DATED 23.11.2023 VIDE ANNEXURE-E, QUASH THE ORDER PASSED BY NO. SA.KHA.NI/ARAKERE/CO/25/2021-22 VIDE ANNEXURE-C1 AND ETC. 19.03.2021 DATED THE REF R-2 THIS FRTHER CONSIDERATION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: PETITION, COMING FOR ON CORAM: HON'BLE MR JUSTICE N S SANJAY GOWDA 1. 2. ORAL ORDER These facts are not in dispute: The provisional order/notice dated 09.03.2021 under Section 321(2) of the Karnataka Municipal Corporations Act, 1976 (for short, “the Act”) was issued to the petitioner. This notice stated that the - 4 - NC: 2025:KHC:17374 WP No. 17221 of 2024 petitioner had obtained an approval for building plan on 06.03.2021 vide LP.No.BBMP/AD.COM/BMH/0451/2020-21 for the purpose of constructing a stilt, ground and two upper floors. It was stated that the building had been constructed in violation of this plan which was noticed when a spot inspection was conducted on 25.02.2021. The notice ultimately called upon the petitioner to stop the construction, failing which, proceedings would be initiated for demolition at the cost of the petitioner. 3. It may be relevant to state here that the spot inspection is stated to have been conducted on 25.02.2021 and the order, if accepted at its face value, would indicate that the plan had been approved on 06.03.2021. In other words, about 10 or 11 days prior to the sanction, spot inspection had been conducted. This notice was followed with a confirmatory order on 19.03.2021. - 5 - NC: 2025:KHC:17374 WP No. 17221 of 2024 4. The material produced on record would however indicate that the plan was approved by the Assistant Director of Town Planning (for short, “the ADTP”) on 24.03.2021 at 11.13 a.m. and the same is evidenced by the digital signature found at Annexure-B – sanctioned plan. 5. The building licence was also issued by the very same ADTP on 24.03.2021 and both in the sanctioned plan as well as in the building licence, the LP number is stated as BBMP/AD.COM.BMH/0451/20- 21. 6. It is to be stated here that though the plan was sanctioned and building licence was granted on 24.03.2021, nevertheless, the notice under Section 321(2) of the Act indicated that the plan had been approved on 06.03.2021. This statement was therefore patently a false statement. 7. The fact that the concerned engineer was able to provide the licence plan number and the date itself - 6 - NC: 2025:KHC:17374 WP No. 17221 of 2024 indicates the nature of collusion between the applicant and the concerned engineers. 8. It may also be pertinent to state here that if, as a matter of fact, the plan was sanctioned only on 24.03.2021, it is clear that the building had been constructed even without a licence plan and the issuance of a provisional order under Section 321(2) of the Act and its confirmation established this fact beyond all doubts. 9. The BBMP thereafter appears to have become wise and having realized that they had in fact approved the building plan about five days after it had passed an order of confirmation under Section 321(3) of the Act, it proceeded to cancel the sanctioned plan on 20.11.2021. 10. The consideration of the above facts would indicate firstly, that the plan was approved after the confirmatory order was passed under Section 321(3) of the Act on 19.03.2021 and about eight months - 7 - NC: 2025:KHC:17374 WP No. 17221 of 2024 thereafter the plan itself was cancelled on 20.11.2021. 11. The petitioner thereafter approached the Karnataka Appellate Tribunal (for short, “the Tribunal”) against the order of confirmation. 12. The Tribunal, on consideration of materials placed before it, has dismissed the appeal and as a consequence, the present petition has been preferred. 13. The Tribunal has come to the conclusion that the construction put up by the petitioner was patently illegal, inasmuch as the sanctioned plan itself had been cancelled and therefore, the proceedings initiated to demolish the deviated portion of the construction could not be found fault with. The Tribunal has also noticed that there was gross violation by the petitioner inasmuch as one extra floor has been constructed. - 8 - NC: 2025:KHC:17374 WP No. 17221 of 2024 14. It may be pertinent to state that in this writ petition, not only the order of the Tribunal, but also the order canceling the plan on 20.11.2021 were sought to be challenged. 15. The petitioner is basically challenging the cancellation of sanctioned plan after he has suffered an order of dismissal at the hands of the Tribunal. 16. Learned counsel for the petitioner strenuously contended that the entire proceedings initiated by BBMP were illegal and the petitioner was not even notified of the proceedings and the spot inspection was conducted in the absence of the petitioner. 17. It may be pertinent to state here that in order to ascertain whether there was indeed a contravention from the sanctioned plan which was subsequently cancelled, the jurisdictional AEE was directed to hold a spot inspection in the presence of the GPA holder of the petitioner and submit a report along with photographs. Accordingly, a compliance report has - 9 - NC: 2025:KHC:17374 WP No. 17221 of 2024 been filed on 10.07.2024 in which the deviations were recorded as follows: Field Inspection Report as per the High Court Order W.P.17221/2024 Details of the Building Construction at Ward No Name of the Owner: Address of Property: LP/SP No: Date of Inspection Ward No. 187 Sri.Rehaan Siddiq Site No.70, Katha no.124/70, Sy.No.4/4,Sarakki, Nanjundeshwara layout, Bangalore Ad.Com/BMH/0324/2021-22, Date:24/04/2020 08-07-2024 Details of Deviation Details As per Sanction As per Actual Deviation Deviation(%) Remarks 336.01 1 2.2 1.5 78.60 Set back Front (Mtr) 1.02 Back(Mtr) Right(Mtr) Left(Mtr) Coverage (sqm) Built of Area (sqm) FAR(%) Hight(Mtr) 14.40 No of Floors Stilt(sqm) Ground (sqm) First Floor (sqm) 78.60 78.6 78.6 2.30 4 0.05 0.8 0.25 0.5 116.42 0.97 0.20 1.95 1.00 37.82 95% 20% 88.63% 66% 48.11% 582.114 246.10 73.24% 3.98 16.60 5 1.68 - - 116.428 37.83 116.428 37.83 73.00% - - 48.10% 48.10% 116.428 37.83 48.10% Sl. No. 1 2. 3. 4. 5. 6. 7 8. 9. 10. Second 78.6 116.428 37.83 48.10% Floor (sqm) 11. Terrace 21.6 - - - (sqm) - 10 - NC: 2025:KHC:17374 WP No. 17221 of 2024 18. As could be seen from the above, in respect of set back, there is deviation ranging from 20% to 95%. In respect of coverage, there is deviation of 48.11%, in respect of built up area, there is deviation of 73.24% and in respect of FAR, there is deviation of 73%. The report also points out that there is violation of the sanctioned height by about 2.20 metres and there is an extra floor constructed. The report also indicates that there is deviation to the extent of 48.10% in respect of all floors put up and this would therefore fundamentally indicate that there is gross violation from the sanctioned plan, which in fact had been cancelled. 19. It may be pertinent to state here that there is also a serious irregularity committed by the concerned Assistant Executive Engineer and the Assistant Engineer who submitted the field inspection report. Though the petitioner had obtained a sanction plan vide L.P.No.BBMP/AD.COM/BMH/0451/2020-21, in - 11 - NC: 2025:KHC:17374 WP No. 17221 of 2024 the field inspection report, the respondent-BBMP has made it as L.P.No.AD.COM/BMH/0324/2021-22, which is relatable to some other property. 20. In this writ petition, the concerned Engineers were ordered to be impleaded since under Section 321-B of the Act, they would also be liable for penal action, if they have failed to prevent unauthorized construction. 21. Learned Counsel for the AEE and AE submits that LP number mentioned in the field inspection report is by inadvertence and the inspection was made with reference to L.P.No.BBMP/AD.COM/BMH/0451/2020- 21 and the details of deviation were also with reference to L.P.No.BBMP/AD.COM/BMH/0451/2020- 21. 22. It is to be stated here that even if this statement is accepted, it cannot be in dispute that there is gross deviation made by the petitioner not only in respect - 12 - NC: 2025:KHC:17374 WP No. 17221 of 2024 of set back, coverage, but also in respect number of floors. 23. Since the petitioner had not challenged the cancellation of plan till the filing of this writ petition, it is obvious that the construction is per se illegal and this illegality cannot be cured by laying a challenge to the cancellation of plan. 24. It is also to be kept in mind that the building plan was sanctioned on 24.03.2021 i.e., 5 days after the order of confirmation was made on 19.03.2021. As already observed, it only establishes the collusion between the officials of the Planning Department and the Engineers of the ground level, who were required to monitor the construction. Since the petitioner has managed to secure a sanctioned plan after the order of confirmation was passed, the petitioner would not be entitled to challenge the cancellation especially when cancellation is being challenged after the order - 13 - NC: 2025:KHC:17374 WP No. 17221 of 2024 of confirmation was passed under Section 321(3) of the Act, which has been confirmed in appeal. 25. This petition filed by the petitioner challenging the order of the Tribunal and challenging cancellation of building licence is totally without any merit and consequently, the same would have to be dismissed. However, the matter cannot rest at that stage. 26. Section 321-B of the Act mandates that if the jurisdictional officers failed to prevent the unauthorized deviation or construction, they would be liable to penalty as per the prescribed Rules. The Rules that have been framed indicates that the penalty to be paid by the jurisdictional officers would be depending on the number of contraventions. 27. It is noticed that the 7th respondent herein i.e., Sathya, the Assistant Engineer (AE) was in-charge on 16.01.2021 i.e., prior to issuance of notice under Section 321(2) of the Act and the concerned - 14 - NC: 2025:KHC:17374 WP No. 17221 of 2024 Assistant Executive Engineer (AEE) was one Kantha Raj i.e., respondent No.6 at that point in time. 28. Learned counsel appearing for the 7th respondent contends that the 7th respondent took charge only on 16.01.2021 and at the time of taking charge, the construction had come up to third floor and prior to him taking charge, one K.Devegowda i.e., respondent No.8 was working as AE in his place and one C.T.Anjanappa i.e., respondent No.9 was working as AEE. 29. In my view, the BBMP would therefore have to hold an enquiry as to which of the officials including K.Devegowda and C.T.Anjanappa, even though they were retired, were responsible for sanction of plan which was granted after the order of confirmation was passed and which of the officers were in-charge when the construction was started which can only be prior to 24.03.2021 and after hearing the concerned, the BBMP shall pass appropriate order in accordance - 15 - NC: 2025:KHC:17374 WP No. 17221 of 2024 with Rules framed under Section 321-B of the Act against them. 30. The BBMP would also have to take action against the ADTP who sanctioned the plan after the order of confirmation was passed on 19.03.2021. 31. The BBMP would also be at liberty to not only impose penalty against the jurisdictional officers who were negligent and who were failed to prevent unauthorized construction, it would also be entitled to recover the cost of demolition from the concerned jurisdictional officers, since it is due to their fault the petitioner was able to put up illegal constructions. The reason why the jurisdictional officers have been saddled with liability to pay the cost of demolition was that they failed to discharge their duties, which was mandatory and cannot be wished away. 32. The BBMP would also have to ensure that the order of confirmation that it has passed is implemented in - 16 - NC: 2025:KHC:17374 WP No. 17221 of 2024 its entirety forthwith and a compliance report be filed or before 30.06.2025. 33. The matter shall be listed before this Court on 30.06.2025 without reference to the disposal of this case. Sd/- (N S SANJAY GOWDA) JUDGE PKS List No.: 1 Sl No.: 70