IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 19TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL Nos.2021-22 OF 2015 (LB-BMP) BETWEEN:
A JAYSHREE WIFE OF N ASHOK KUMAR AGED ABOUT 49 YEARS NO.60 VIVANI ROAD, SAGAYAPURAM, WARD NO.90, FRAZER TOWN, NO.769/17, FIRST CROSS BENGALURU-569 995.
(BY SRI. GURUDATH B S, ADVOCATE) AND:
…APPELLANT 1. THE COMMISSIONER BANGALORE MAHANAGARA PALIKE N. R. SQUARE, BENGALURU-560 002.
2. THE ASSISTANT EXECUTIVE ENGINEER JAYAMAHAL RANGE CORPORATION BANGALORE MAHANAGARA PHALIKE BENGALURU-560 001.
….RESPONDENTS (BY SRI. K V MOHAN KUMAR, ADVOCATE FOR R-1 AND R-2 ) THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION 21867-868 OF 2015 DATED 15.06.2015.
THESE WRIT APPEALS COMING ON FOR HEARING THIS DAY, ASHOK S KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order of dismissal dated 15.06.2015, passed by the learned Single Judge in W.P.Nos.21867-21868 of 2015, the petitioner has filed these writ appeals.
2. Parties are referred to as they are arrayed in the writ petitions.
3. Brief facts of the case are as follows:
Petitioner’s husband Mr. Ashok Kumar Godke was the owner of portion of premises bearing No.60, Vivani Road, Sagayapuram, Ward No.90, Frazer town, Bangalore which was left to him by his father through a Will. Mr. Ashok Kumar Godke released the said property and executed a deed in favour of his wife, the petitioner. The said property consisted of a building in ground floor. Since she wanted to construct first floor, she applied for licence for the said construction. On 26.09.2005, she was granted the permission and accordingly she constructed the same in accordance with the sanctioned plan. According to the petitioner, she has not violated any of the byelaws.
On 03.06.2006, she received a confirmation order under Section 321(3) of the Karnataka Municipal Act, which was not preceded by any provisional order. Aggrieved by the said order, she filed an appeal before the Karnataka Appellate Tribunal (‘KAT’ for short) which was dismissed vide order dated 08.05.2015.
Aggrieved by the order of dismissal dated 08.05.2015 by the KAT, the petitioner filed Writ Petition Nos.21867-868 of 2015 seeking to set aside the same. After hearing both the sides, learned Single Judge dismissed the appeal observing that there was clear violation of the byelaws and confirmed the order of KAT.
Aggrieved by the order of learned Single Judge, the petitioner is in appeal before this court.
4. Heard the arguments of the learned counsel for the parties and perused the records.
The petitioner is the owner of the portion of the premises bearing No.60, Vivani Road, Sagayapuram Ward No.90, Frazer Town, Bangalore. The petitioner wanted to construct the first floor, applied for licence for the said construction on 26.09.2005. The petitioner has undertaken the construction work contrary to the sanctioned plan and without leaving the setback. The respondents after coming to know about the said fact issued provisional order on 03.06.2006 alleging that the petitioner has constructed the building without leaving setback and directed the petitioner to demolish the construction by issuing show cause notice. The petitioner did not reply to the said notice and final order was passed directing the petitioner to comply with the order of demolition. Thereafter, the petitioner preferred an appeal before the Karnataka Appellate Tribunal. The Tribunal dismissed the appeal filed by the petitioner.
5. The allegation against the petitioner is that the petitioner has put up the construction against the sanctioned plan and violated the byelaws, i.e., petitioner has not left the setback. Sub-section(3) of Section 321 of the Karnataka Municipal Corporations Act, 1976 contemplates that, if the owner or builder fails to show cause to the satisfaction of the Commissioner, the Commissioner may confirm the order passed under Section 321(1) and such an order shall be binding on the owner. We do think that such a conditions is in existence in this case to warrant action under sub-section (3) of Section 321 of the Act, because petitioner has undertaken construction by violating Section 321(1)(c) of the Act.
6. The said action of the respondents was challenged before the Karnataka Appellate Tribunal, The Tribunal after examining the entire records dismissed the appeal. The petitioner being aggrieved by the same, filed W.P.Nos.21867-21868/2015 challenging the order passed by respondent No.1 and also the order passed by the Tribunal.
7. The learned single Judge, after re- appreciating the entire material on record has confirmed the order passed by the Tribunal and held that the petitioner has violated the byelaws and the petitioner had not left any setback as per the sanctioned plan on all three sides, i.e., northern, southern and western side.
8. In view of the above discussion, we are of the opinion that the petitioner has violated the byelaws and the Commissioner has rightly taken action against the petitioner. We do not find any grounds to interfere with the impugned order. Hence, we proceed to pass the following:
ORDER The writ appeals are dismissed.
Sd/- JUDGE Sd/- JUDGE RD