IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION Nos.44856-44859/2017 (LB-BMP) Between:
1. Gurupriya Apartments Condominium Represented by its President #57 & #58, 6th Cross, 5th Main, Chamarajpet, Bengaluru – 560018.
(R/by B.Rajasubramanya Bhat, Petitioner No.2) 2. B.Raja Subramanya Bhat Aged 52 years S/o. B.S.N. Bhat Flat A2, Gurupriya Apartments 58/3, 6th Cross, 5th Main, Chamarajpet Bengaluru – 560018.
3. V. Thiyagarajan Aged about 53 years S/o. T.M.Venkataraman Flat A3/B2, Gurupriya Apartments 58/4, 6th Cross, 5th Main, Chamarajpet Bengaluru – 560018.
4. A.S.Shankaranarayana Setty Aged about 73 years S/o. Late Subbaiah Setty Flat A6, Gurupriya Apartments 58, 6th Cross, 5th Main, Chamarajpet, Bengaluru – 560018. (By Sri Satish R. Girji, Advocate) ... Petitioners And:
1. The Commissioner BBMP, Central Offices, N.R.Square Bengaluru – 560001.
2. Executive Engineer, Chamarajpet Sub-division, BBMP Building, JC Road Bengaluru – 560002.
3. Assistant Executive Engineer (Ward 140), BBMP Building, J.C. Road Bengaluru – 560002.
4. My Symbiosis Residences Represented by Sri Chetan Kumar, Mani Niwas #6, Jain Temple Street, V.V.Puram Bengaluru – 560004. … Respondents (By Sri K.V.Mohan Kumar, Adv. for R1 to R3; Sri T.S.Satish, Adv. for R4) These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to direct the respondent BBMP authority to pass necessary order on the application at Annexure-A dated 29.05.2017 submitted on 31.05.2017 and complete the pending proceedings and pass necessary order initiated u/sec.321 of the Act and etc., These Writ Petitions coming on for orders this day, the Court made the following:
ORDER The petitioners have sought for issuance of appropriate writ in the nature of mandamus to direct the respondent-BBMP to pass orders on the representation at Annexure-A dated 29.05.2017 and to take further action in exercise of power under Section 321 of Karnataka Municipal Corporations Act, 1976 (for short ‘KMC Act’). During the pendency of this petition, this Court had passed various orders and by order dated 06.12.2017 this Court had directed respondent No.4 to deposit a sum of Rs.3,00,000/- (Rupess three lakhs only) with the Registrar General of this Court by way of Security Deposit to ensure that the respondent No.4 would comply with further directions of this Court. It has also observed that respondent No.4 was directed to show cause as to why the said deposit could not be treated as costs and compensation payable to the petitioners or to be paid to the Legal Services Authority of the State.
2. The counsel appearing on behalf of the respondent-BBMP has filed a memo on 24.07.2018 stating that provisional order was passed after issuing notice to the respondent No.4. Subsequently, after considering the reply of the respondent No.4, an order has been passed under Section 321(3) of the KMC Act. It is further stated that as against the said order passed under Section 321(3) of the KMC Act, proceedings have been initiated under Section 443A of the KMC Act before the Karnataka Appellate Tribunal in Appeal No.765/2018 and the said matter is pending consideration.
3. Taking note of the fact that the proceedings are now pending before the Karnataka Appellate Tribunal, it would not be appropriate to express any further opinion on merits of the matter though learned counsel for the petitioners states that portions of the building prima facie are illegal and there is no defence as such set up by the respondent No.4 regarding the same. However, noticing that the respondent-BBMP has initiated necessary action, no further orders are called for. However, the amount of Rs.3,00,000/- that was deposited with the Registrar General is directed to be transferred to the respondent-BBMP to be kept in Fixed Deposit and to be renewed periodically. In the event, any order is passed upholding the order under Section 321(3) of the KMC Act by the respondent-BBMP, the respondent-BBMP would take necessary action pursuant to power conferred under Section 462 of KMC Act and for such action relating to removal of unauthorized construction, the amount that has been now transferred would be utilized for such demolition. It is made clear that in the event the respondent No.4 succeeds in having an order under Section 321(3) of the KMC Act set aside the amount deposited by him would be permitted to be withdrawn.
4. Taking note of the observations made by this Court in W.P.33739/2016, the petitioners are at liberty to take appropriate steps to implead themselves before the Karnataka Appellate Tribunal and the said application would be considered in accordance with law.
5. Learned counsel for the respondent-BBMP has filed a memo today with a document indicating approximate cost that would be incurred for the purpose of demolition if Order under Section 321(3) of the KMC Act is sustained, the same is taken on record.
With the above observations and directions, the writ petitions are disposed of.
Sd/-
JUDGE TL