MRS. JAMBU KANNAN v. THE ADDITIONAL DIRECTOR, TOWN PLANNING (SOUTH), BRUHATH BANGALORE

4. MR. DILEEP JAIN, AGED ABOUT 38 YEARS, NO.58, 3RD CROSS, GAVIPURAM EXTENSION, BASAVANAGUDI, BANGALORE - 560 019. - 3 - NC: 2024:KHC:9651 WP No. 20320 of 2023

5. MR. PRADEEP JAIN, AGED MAJOR, NO.58, 3RD CROSS, GAVIPURAM EXTENSION, BASAVANAGUDI, BANGALORE - 560 019.

6. MR. B.J. SHASHI, AGED: MAJOR, NO. 50/1, S.B. ROAD, V.V.PURAM, BASAVANAGUDI, BANGALORE - 560 004.

7. MS. DEEPTHI NISHANT, AGED MAJOR, NO. 50/1, S.B. ROAD, V.V.PURAM, BASAVANAGUDI, BANGALORE - 560 004.

8. MR. SHRUNGAN B.N, AGED MAJOR, NO. 50/1, S.B. ROAD, V.V.PURAM, BASAVANAGUDI, BANGALORE - 560 004. …RESPONDENTS (BY SRI. B.S. KARTHIKEYAN, ADVOCATE FOR R1 TO R3; SRI. B. ROOPESHA, ADVOCATE FOR R4; NOTICE SERVED ON R7 AND R8) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE FIRST TO THIRD RESPONDENTS TO REMOVE THE DEVIATIONS AND - 4 - NC: 2024:KHC:9651 WP No. 20320 of 2023 ILLEGAL PORTION OF CONSTRUCTION BUILT ON THE SCHEDULE PROPERTY EVIDENT FROM A PERUSAL OF ANNEXURE-A TO A3 SERIES AND ETC., THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The petitioners assert that they are the owners the apartment bearing No.59, 3rd Cross, Gavipuram Extension, Basavanagudi, Bengaluru-560 019 [the adjacent property] and the sixth to eighth respondents are the owners of the apartment bearing No.58, 3rd Cross, Gavipuram Extension, Basavanagudi, Bengaluru-560 019 [the subject property]. The petitioners have filed this petition for directions to the first to third respondents to take action to remove the deviations in the construction in the subject property and to ensure that the construction in this property is in accordance with the Bruhat Bengaluru Mahanagara Palike (for short, 'the BBMP') building Byelaws. - 5 - NC: 2024:KHC:9651 WP No. 20320 of 2023

2. Initially, this writ petition is filed only against BBMP and its officials and the fourth and fifth respondents, but the sixth to eighth respondents are impleaded later. The fourth respondent asserts that he is a friend of the sixth to eighth respondents and that he is the contractor who is executing the work on behalf of the aforesaid respondents. This Court has called upon the Chief Commissioner, BBMP to file an affidavit, and as such, the Chief Commissioner has filed his affidavit on 05.12.2023, and the Joint Director of Town Planning (South), BBMP had earlier filed an affidavit.

3. It is seen from the affidavit filed by the Chief Commissioner, BBMP that the sixth and seventh respondents have filed an application for sanction of the plan for the proposed building in the subject property on 27.11.2022; that the concerned officials from the BBMP have inspected the subject property on 05.12.2022 and 13.03.2023 as part of - 6 - NC: 2024:KHC:9651 WP No. 20320 of 2023 the exercise for grant of approval; and that the BBMP has issued the sanction of the plan on 12.12.2023. In the meanwhile, this Court on 25.9.2023 had directed the BBMP Officials to inspect the subject property to ascertain the deviations, if any, by directing these officials to ensure that there is no further construction.

4. The Chief Commissioner has further stated that after this Court's order dated 27.09.2023, the concerned officials have visited the property and issued notices under Sections 248(1) and (2) of the BBMP Act, 2020 on 16.10.2023. It is now stated that the Confirmation Order dated 30.10.2023 is passed under Section 248(3) of the BBMP Act, that the sixth to eighth respondents have filed an appeal under Section 253 of the BBMP Act 2020 before the competent authority in Appeal No.209/2023 and that these respondents have the advantage of an order of - 7 - NC: 2024:KHC:9651 WP No. 20320 of 2023 "Status quo" granted by the Appellate Authority on

20.01.2024.

5. Further, there is some controversy as regards the seal and signature in the sanctioned plan dated 12.12.2023. The Chief Commissioner has stated that the show cause notices dated 01.12.2023 and 04.12.2023 have been issued to the registered Architect to explain the discrepancy in the seal and to explain how the construction is commenced even without the sanctioned plan. The Chief Commissioner has stated in categorical terms that appropriate action will be taken against all the concerned for the deficiency noticed by him.

6. This Court must observe that it would be most essential that the doubts about the seal and signature in the sanctioned plan and the reasons for the commencement of the construction without the sanctioned plan are duly examined in the light of these circumstances. - 8 - NC: 2024:KHC:9651 WP No. 20320 of 2023

27.11.2022

05.12.2022 13.03.2023 12.12.2023

16.10.2023

30.10.2023 The date of application for issuance of sanctioned Plan and Building license The date of purported visits by the concerned officials The date of issuance of sanctioned plan and Building License The date of issuance of Provisional order under Section 248(1) of the BBMP Act, 2020 The date of Confirmation Order under Section 248(1) of the BBMP Act, 2020 issuance of Further this Court, with the appeal under Section 253 of the BBMP Act, 2020 pending in Appeal No.209/2023, must observe that the Appellate Authority must consider that there are simultaneous proceedings issuance of plan sanction and building license, and this could be strange.

7. Sri Suraj Sampath, the learned Counsel for the petitioners, submits that this Court must pass reasonable orders in the light of the fact that sixth to eighth respondents could not have filed an appeal beyond 30 days from the date the order of - 9 - NC: 2024:KHC:9651 WP No. 20320 of 2023 Confirmation Order under Section 248(3) of the BBMP Act and an appeal would even otherwise not lie against the Confirmation Order once the demolition orders are passed under Section 256 of the BBMP Act. However, this Court must observe that these contentions must also be considered by the Appellate Authority and any opinion by this Court, at this stage, would foreclose the appeal and that cannot be.

8. This Court is of the considered view that the petition must be disposed of observing that all the circumstances must be considered by the Appellate Authority while deciding on the sixth to eighth respondents’ appeal in No. Appeal No.209/2023 on merits. Further, in the peculiarities of this case where it is undisputed that substantial construction is completed without a plan and that the sanction is granted during the pendency of the petition, with even the BBMP expressing certain doubts about the genuineness of the sanctioned plan, this Court is of - 10 - NC: 2024:KHC:9651 WP No. 20320 of 2023 the considered view that the petitioner must be granted liberty to file an application in the appeal proceedings in Appeal No.209/2023 to implead themselves observing that even otherwise in law, the petitioners could file an application. For the foregoing, the following: ORDER [A] The petition stands disposed of with liberty to the petitioners to file an application for impleadment in the pending appeal proceedings in Appeal No.209/2023 observing that if such application filed, the Appellate Authority shall consider the same in the light of the observations made above. [B] The sixth to eighth respondents shall maintain status quo as directed by the Appellate Authority, and it is observed that if it is brought to the Appellate Authority that there is any construction despite the orders of status quo, the Appellate Authority - 11 - NC: 2024:KHC:9651 WP No. 20320 of 2023 shall consider the same as a ground by itself to dismiss the appeal. [C] The Chief Commissioner, BBMP, shall file a report to the Registry on the outcome of the show cause notices dated 01.12.2023 and 4.12.2023 [as regards the seal and signature found sanctioned plan dated

12.12.2023], and this report shall be filed before 11th December 2024 and to ensure compliance, the Registry is directed to send a copy of this order to the Chief Commissioner, BBMP, both under registered post acknowledgement due and by E-mail. [D] The petitioners are reserved liberty to seek expeditious disposal of appeal, application impleadment is allowed. SD/- JUDGE NSU