IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION NO.10025 OF 2019 (LB-BMP) BETWEEN Smt. B. A. Varalakshmi, W/o Subramanya, Aged About 58 years, Presently residing at No.836, 13th Cross, Mahalakshmi Layout, Bengaluru-560 086.
(By Sri. Muralidhar H. M., Adv.) AND 1. Bruhat Bangalore Mahanagara Palike, N.R.Square, Bangalore-560 002. Represented by its Commissioner.
2. Assistant Executive Engineer, Bruhat Bangalore Mahanagara Palike, Ward No.195, Anjanapura Sub Division, 2ND Main Road, 6TH Cross, RBI Layout, Bangalore-560 078.
... Petitioner ... Respondents (By Sri. Amit Deshpande, Adv.) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to call for the records on the file of the Karnataka Appellate Tribunal, Bengaluru, in Appeal No.157/2018 vide Annexure-A, peruse the same, allow writ petition, quash the impugned orders dated 22nd February 2019.
This writ petition coming on for Orders this day, the Court made the following:
O R D E R The petitioner who is stated to be the owner of the building consisting of stilt, ground floor, first floor, second floor and terrace floor bearing No.621, RBI Layout, Kothanur Village, Bengaluru, had initially challenged the notice at Annexure-B issued by the respondent - Bruhat Bengaluru Mahanagara Palike (hereinafter referred to as ‘BBMP’ for brevity) before the Karnataka Appellate Tribunal in Appeal No.157/2018 contending that the impugned notice was not in conformity with the provisions under Section 308 of the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as ‘the Act’ for brevity); that the respondent BBMP did not have power to call upon the petitioner to produce title deeds, etc.; that the impugned notice lacked particulars and was vague; and exercise of power was contrary to Section 308 of the Act. The Karnataka Appellate Tribunal has dismissed the appeal by order dated 22.2.2019. The said order is now challenged and the petitioner contends that the order passed under similar circumstances in Appeal No.940/2014 by the same Appellate Tribunal has not been taken note of, though the facts in question in the other appeal was similar to that in the present case. Other contentions have also been urged including that notice under Section 308 of the Act ought to be specific and clear.
2. Learned counsel for the petitioner though has advanced arguments as regards the scope of the power under Section 308 of the Act including nature of notice that is required to be given by the respondent - BBMP, the petitioner states that she is primarily aggrieved by the prohibition to stop construction immediately as stipulated under the notice at Annexure-B.
3. Learned counsel for the respondent - BBMP on the other hand states that the notice issued under Section 308 of the Act is only a preliminary notice calling upon the petitioner to furnish clarifications and necessary documents and upon furnishing of explanation and necessary documents, further action under Section 321 of the Act would be resorted to in accordance with law after providing necessary opportunity.
4. Learned counsel for the petitioner states that if an embargo to stop construction is lifted for the present, her grievance would be addressed and further asserts that in fact the construction is in accordance with the sanctioned plan as well as Building Bye-laws.
5. The Appellate Tribunal while disposing of the appeal has distinguished the order in Appeal No.940/2014 and has observed that notice issued to the petitioner in the present case is unambiguous and clear.
6. In light of the submission made by the counsel for the petitioner as regards petitioner’s primary grievance relating to stay of further construction, upon consideration, no interference as such is called for in the order at Annexure-A subject to the observations made below. However, it is clarified that pursuant to the notice at Annexure-B, the petitioner would comply with furnishing of documents at Sl.Nos.3 to 5 of the notice. The question of the respondent – BBMP insisting on furnishing the documents at Sl.No.1 does not arise, as the same would have been obtained at the time of sanctioning the plan. It is made clear that at the stage of 308 proceedings, directing the petitioner to stop construction immediately, is premature, as the observation that there are violations is a vague observation bereft of particulars. Accordingly the portion of notice directing the petitioner to stop construction immediately, is set aside. The respondent - BBMP is permitted to take appropriate action in accordance with Section 321 of the Act, after considering the explanation of the petitioner and the documents furnished by her pursuant to Annexure-B.
7. The petitioner is to furnish necessary documents and explanation/reply, if any, with respect to the notice at Annexure-B within a period of two weeks from the date of release of this order. Thereupon, BBMP is at liberty to take appropriate action in accordance with law. It is made clear that the construction by the petitioner would be at her risk, subject to proceedings initiated under Section 321 of the Act.
8. It is made clear that the order that is passed is in the light of the peculiar facts of the present case.
Petition is disposed of subject to the above observations.
Sd/- Judge RD