IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.65163/2016 (LB-BMP) Between:
Smt. Chanda Salariya, W/o Late Ashok Salariya, Aged about 62 years, R/at Katha No.82/2, Nagavarapalya Main Road, C.V. Raman Nagar, Ward No.57, Bangalore – 560 093. ... Petitioner (By Sri M.N. Umashankar, Advocate) And:
1. The Commissioner, Bruhath Bengaluru Mahanagara Palike, Hudson Circle, Bangalore – 560 002.
2. The Assistant Executive Engineer, Office of the BBMP, C.V. Raman Nagar Sub-Division, 1 ‘A’ Cross, 2nd ‘H’ Main Road, Kasturi Nagar, Bangalore – 560 043. ... Respondents (By Sri K.N. Puttegowda, Advocate) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the impugned order dated 30.11.2016 passed by the learned sitting members of the Court Hall No.1–Karnataka Appellate Tribunal, Bangalore passed in Appeal No.131/2016 at Annexure-A and etc.
This Writ Petition having been heard and reserved on 19.12.2018 and coming on for pronouncement of orders this day, the Court, made the following:
O R D E R The petitioner, who claims ownership of the property through partition has challenged the order dated 30.11.2016 passed by the Karnataka Appellate Tribunal, Bengaluru whereby the appeal filed by the petitioner was dismissed.
2. The dispute pertains to alleged illegal construction on the premises bearing No.82/2 situated in Nagavarapalya, Ward No. 57, C.V. Raman Nagar, Bengaluru, in which Smt. Chanda Salariya, wife of Late Shri Ashok Salariya has been residing.
3. The facts of the case are that the premises bearing No.82/2 (portion of old No.168) was the property of Late Shri Ashok Salariya acquired under the oral partition effected on 01.01.1981 reduced into writing on 17.05.1981, between the 5 sons of Late Shri K.C. Salariya. While the petitioner resides in one of the portions of the partitioned property, the adjacent portion is occupied by Shri.Sudhir Salariya, the brother-in law of the petitioner, who acquired the said adjacent portion under the same partition dated 01.01.1981. Further, the partition effected on 01.01.1981 and reduced into writing on 17.05.1981 is currently under challenge by way of two civil suits pending before the City Civil Court, Mayo Hall, Bengaluru in O.S.No.16908/2004 and O.S. No.16375/2006. Shri.Sudhir Salariya is one of the defendants in both the suits pending before the City Civil Court, Mayo Hall.
4. The petitioner states that she has made some minor repair work in her residential building on the first floor to avoid rain-water leakage in the roof and the walls. These repair works include replacement of dilapidated old asbestos sheet roofing with tin sheets and re-plastering the walls in areas where there is leakage of water. The petitioner submits that this is in the nature of a ‘necessary repair’ as provided for, in the proviso to Section 320 of the Karnataka Municipal Corporations Act, 1976 (for short ‘the KMC Act’). Shri. Sudhir Salariya complained to the BBMP about construction of the first floor by the petitioner without obtaining a sanctioned plan from the BBMP. A notice has been issued by the BBMP dated 18.12.2014 vide Annexure-E to the petitioner. The notice was replied by the petitioner on 24.12.2014 vide Annexure-F.
5. The petitioner further states that Shri.Sudhir Salariya made a further representation to the BBMP on a letterhead of “Nava Bharat Daily” and threatened the Authorities by stating that he will approach the Lokayukta. The petitioner further states that BBMP Authorities yielding to his pressure have issued a notice at Annexure-N under Section 321(2) of the KMC Act on 20.01.2016 stating that the petitioner had not obtained permission to construct the first floor. The petitioner further denies the conducting of a spot inspection as has been referred to in the said notice and states that no mahazar or report has been submitted before the Karnataka Appellate Tribunal (for short ‘KAT’) or before this Court, in that regard.
6. The BBMP has passed a provisional order at Annexure-O dated 20.01.2016 under Section 321(1) of the KMC Act on the ground that the construction on the first floor was without any sanctioned plan. The said provisional order was communicated to the petitioner calling upon him to show cause as to why the said provisional order should not be confirmed. Not being satisfied with the reply of the petitioner, the provisional order came to be confirmed by way of an order passed under Section 321(3) of the KMC Act dated 05.02.2016 at Annexure-Q. It is pointed out in the confirmatory order that additions and alterations had been carried out without obtaining permission from the BBMP. The said order specifies the extent of deviation in the first floor. The petitioner was called upon to remove the constructed portions, which were in violation of the sanctioned plan.
7. The said order came to be challenged before the Karnataka Appellate Tribunal, which, by its order dated 30.11.2016 has dismissed the Appeal No.131/2016 and upheld the validity of the confirmatory order. The said order by the Karnataka Appellate Tribunal is in challenge before this Court.
8. The Tribunal has recorded a finding that no licence had been obtained for the purpose of alteration and repair as was required and hence, has confirmed the order under Section 321(3).
9. The petitioner has assailed the order of the Karnataka Appellate Tribunal contending that the action initiated was tainted with mala-fides, as the proceedings were initiated at the instance of Sudhir Salariya, who was a defendant in the pending suits.
10. It was contended that there was no fresh construction requiring a sanctioned plan as the alteration involved replacement of the asbestos sheets with tin sheets. The petitioner states that the proviso to Section 320 of the KMC Act makes it clear that alteration or addition not affecting the dimensions of a building, would not require any permission.
11. The petitioner further contends that there was no spot-inspection that was carried out in her presence. It is further contended that the confirmatory order and the provisional order under Sections 321(3) and 321(1) of the KMC Act respectively, are at variance, with each other.
12. On the other hand, the learned counsel for the respondents has sought to support the impugned order and contends that the petitioner had carried out alterations that required obtaining of necessary permission from the Authorities.
13. Having heard the learned counsel on both sides, the point that arises for consideration is:-
“Whether grounds are made out to set aside the order of the Karnataka Appellate Tribunal as well as proceedings initiated under Section 321 of the Karnataka Municipal Corporations Act, 1976”
14. The primary contention of the petitioner is that the only alteration carried out to the building was the replacement of the asbestos roofing sheets with tin sheets, and minor repairs and such alteration did not require any specific permission.
15. A perusal of the proviso to Section 320 of the KMC Act makes it clear that an addition or an alteration which does not affect the position or dimensions of the building shall not be deemed to be an alteration or an addition. It is also provided in Section 320(2) of the KMC Act that wherever a question arises as to whether the addition or alteration is a repair not affecting the position or dimensions of a building, such a question shall be referred to the Standing Committee, whose decision shall be final.
16. It is clear from the facts of the present case that what has been complained of, was in fact an alteration of the building. This becomes clear on a perusal of the confirmatory order under Section 321(3) of the KMC Act. In fact, the reply submitted by the petitioner to the notice under Section 308 of the KMC Act clearly places forth the fact that the first floor of the building being in a dilapidated condition, with broken roof sheets, the same were replaced by Tin Sheets. It is submitted by the petitioners that such repair did not require permission. This reply of the petitioner has not been considered while passing the order under Section 321(1) or under Section 321(3) of the KMC Act.
17. The same question being raised in the appeal proceedings, it is the specific contention of the BBMP Authorities that the addition and alterations to the existing structure was made without obtaining any permission. Whereas the petitioner contends that the alteration, not affecting the dimensions did not require any permission. However, the KAT, in its order has not adverted to the said aspect. During the course of arguments, the learned counsel for the BBMP also submits that the case stands or falls on the applicability of the proviso to Section 320 of the KMC Act.
18. Taking note of the reply furnished by the petitioner on 24.12.2014, the statement of objections filed by the respondent before the KAT, it is clear that the only violation complained of was the alteration. There is no reason to disbelieve the version of the petitioner that the only repair was replacement of the roofing sheets without affecting the existing dimensions of the property. The KAT while holding that the repair was unauthorized and illegal, has not recorded a finding as to whether the proposed alteration had in fact resulted in change in the dimensions of the property. In the light of the assertions by the petitioner in the replies furnished to the BBMP as regards repair not affecting the dimensions of the building, the KAT could not have recorded a finding that the alteration required permission without dealing with the assertions of the petitioner.
19. It ought to be noted that the proceedings are summary in nature before the Authority vested with power under Section 321(3) of the KMC Act as well as the KAT. In fact, photographs as have been annexed in the reply of the petitioner dated 25.01.2016 which are also produced in the present proceeding as Annexures-R, R1 and R2, are not disputed by the learned counsel of the BBMP. The order passed by KAT relies upon these photographs with passing observations which do not reflect any due application of mind to the contentions raised.
20. It is also to be noted that the order under Section 321(1) of the KMC Act and Section 321(3) of the KMC Act are at complete variance, while the provisional order under Section 321(1) of the KMC Act clearly states that the first floor has been put up without sanctioned plan, the confirmatory order under Section 321(3) of the KMC Act refers to additions and alterations. What is to be confirmed under Section 321(3) of the KMC Act is the provisional order, the alterations not being pointed out in the order under Section 321(1) of the KMC Act and without there being any finding that the alteration has resulted in change in the dimensions, the confirmatory order is liable to be set aside.
21. Initiation of proceedings to settle scores as the parties are locked in litigation before the Civil Court wherein the partition amongst the family members has been assailed, cannot be permitted.
22. It is also to be noted that the provisional order under Section 321(1) of the KMC Act having been abandoned in so far as the contradictory stand is taken while passing the order under Section 321(3) of the KMC Act, the entirety of the proceedings commencing with the provisional order are set aside. The point for consideration is answered in the affirmative.
23. Accordingly, the order of the KAT at Annexure-A dated 30.11.2016, the order under Section 321(3) dated 05.02.2016 at Annexure-Q as well as the order under Section 321(1) at Annexure-O dated 20.01.2016 are set aside.
24. No order is required I.A.No.1/2017 for vacating the interim order, as the same has been rendered redundant.
25. I.A. No.2/2017 for production of additional documents is allowed and the said documents are taken on record.
This petition is accordingly disposed of.
Sd/- JUDGE RS/* ct:mhp