IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2017 BEFORE THE HON’BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN WRIT PETITION NO.45764 OF 2015 (LB-BMP) BETWEEN:
INAYATH AGED ABOUT 52 YEARS, S/O. LATE SAB JAN SAB, RESIDING AT NO.24, 7TH MAIN ROAD, BTM LAYOUT 2ND STAGE, RASTRAKAVI KAVEMPU NAGAR, BANGALORE-560076.
... PETITIONER (BY SRI AJIT KALYAN, ADV.) AND:
1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE, N. R. SQUARE, BENGALURU.
2. THE ASSISTANT EXECUTIVE ENGINEER BTM LAYOUT SUB-DIVISION, BRUHAT BANGALORE MAHANAGARA PALIKE, WARD NO.176, 16TH MAIN ROAD, BTM 1ST STAGE, BENGALURU.
... RESPONDENTS * * * THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER PASSED BY THE KARNATAKA APPELLATE TRIBUNAL, BANGALORE, IN APPEAL NO.1045 OF 2012 DATED 7-9-2015 DISMISSING THE APPEAL FILED BY THE PETITIONER HEREIN UNDER SECTION 443 [A] OF THE KARNATAKA MUNICIPAL CORPORATION ACT CHALLENGING THE ORDER PASSED BY RESPONDENT NO.2 DATED 6-10-2012 VIDE ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner, Mr. Inayath, has challenged the order dated 7-9-2015, passed by the Karnataka Appellate Tribunal, Bengaluru, whereby the learned Tribunal has dismissed the appeal filed by the petitioner under Section 443 (a) of the Karnataka Municipal Corporation Act (for short, ‘the K.M.C. Act’).
2. The brief facts of the case are that the petitioner claims that he is the absolute owner and is in possession of property bearing No.24, 7th Main Road, B.T.M. Layout II Stage, Rashtrakavi Kuvempu Nagar, Bengaluru. According to him, he had purchased the said property on 6-10-1997. After the khatha was transferred in his name, he has been paying the taxes in accordance with the law. Since he wanted to construct a residential building, on 21-6-2011, the plan submitted by him was approved by the respondent – B.B.M.P. According to the plan, he was permitted to construct a stilt floor, a ground floor, first and second floor. According to him, despite the fact that he has raised the construction strictly in compliance of the approved plan, on 25-9-2012, he was served with the provisional order passed by the respondent under Sections 321 (1) and (2) of the K.M.C. Act. Subsequently, on 6-10-2012, a confirmation order was passed against him under Section 321(3) of the K.M.C. Act. Since he was aggrieved by the said orders, he challenged the same before the learned Tribunal. However, by order dated 7-9-2015, the appeal has been dismissed. Hence, the present petition before this Court.
3. Mr. Ajit Kalyan, the learned counsel for the petitioner, has pleaded that the learned Tribunal has erred in relying on certain photographs, which were produced by the respondent, in order to conclude that the petitioner has not raised the construction in accordance with the approved plan. However, the copies of the photographs were neither given to the petitioner, nor he was permitted to challenge the same. There is no indication as to when these photographs were taken, and when the spot inspection was made by the respondent. Therefore, the entire impugned order is based on evidence which could not have been admitted. Thus, the impugned order deserves to be set aside by this Court.
4. Heard the learned counsel for the petitioner, and perused the impugned order.
5. This Court has asked the learned counsel pointed queries, namely whether any objection was raised with regard to veracity of the photographs, when the photographs were produced before the learned Tribunal? And whether any application was filed for seeking copies of the photographs which were produced by the respondent? To the first query, the learned counsel submits that the objection were, indeed, raised. To the second query, he submits that no application was filed by the petitioner for seeking copies of the photographs.
6. Although the learned counsel pleads that objections were raised with regard to veracity of the photographs, however, no such objection has been recorded by the learned Tribunal. In case, objections were really raised before the learned Tribunal, the learned Tribunal would have reflected the same in the impugned order. Moreover, no application was filed by the petitioner before the learned Tribunal in order to seek copies of the photographs. Therefore, the Court is not in a position to discover the veracity of the photographs, but since no objections were raised, the photographs would have to be taken as reflecting the truth.
7. Most importantly, even while filing the present petition, the petitioner has neither submitted the photographs which were relied upon by the learned Tribunal, nor submitted any photographs on his own to repel the conclusion drawn by the learned Tribunal. According to the learned Tribunal, although the petitioner had sought approval of a building plan for a residential purpose, but in fact, he has constructed a commercial building. Moreover, while the permission was given to construct a stilt floor, a ground floor, first and second floor thereafter, the petitioner has constructed a building consisting of six floors, and that, too, for commercial purpose. Thus, the construction is clearly in violation of the permission granted by the respondent. Therefore, the learned Tribunal was certainly justified in concluding that the impugned orders passed by the respondents were legally valid, and in rejecting the appeal filed by the petitioner.
For the reasons stated above, this Court does not find any illegality, or perversity in the impugned order dated 7-9-2015. This petition, being devoid of any merit, is hereby dismissed.
Sd/- JUDGE kvk