IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION NO.54190/2018 (LB-BMP) BETWEEN:
Smt.Hemalatha.M, D/o late Sri.S.Muddaveerappa, Aged about 48 years, R/at No.456, 10th Main, 3rd Stage, 4th Block, West of Chord Road, Bengaluru – 560079.
(By Sri.R.B.Sadasivappa, Advocate) …Petitioner AND:
1. The Commissioner, Bruhath Bengaluru Mahanagara Palike, N.R.Square, Bengaluru – 560001.
2. The Joint Commissioner, Bruhath Bengaluru Mahanagara Palike, Rajarajeshwarinagara Zone, Bengaluru – 560098.
3. Assistant Director of Town Planning, Bruhath Bengaluru Mahanagara Palike, Rajarajeshwarinagara, Bengaluru – 560098.
4. The Assistant Revenue Officer, Bruhath Bengaluru Mahanagara Palike, Rajarajeshwarinagara Sub-Division, Bengaluru – 560098.
5. Mr.Srinivas.S.Gowda, S/o late Sanjeevaiah, Aged about 62 years, No.15, Gayathri H.B.C.S. Layout, 11th Cross, Basaveshwaranagara, Bengaluru – 560079.
(By Sri.Rajeshwara.P.N, Advocate for R5 ...Respondents Sri.H.Devendrappa, Advocate for R1 to R4) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order dated 22.11.2018 passed by R-2 vide Annex-L as far as it relates to the petitioner Smt.M.Hemalatha and etc., This Petition coming on for Preliminary hearing in ‘B’ group this day, the Court made the following:
O R D E R The petitioner had filed the present petition impugning the order dated 22.11.2018 as per Annexure – L dated 22.11.2018, whereby the respondent – BBMP in exercise of power under Section 114A of the Karnataka Municipalities Act, 1964, had ordered that the katha issued in favour of the petitioner and respondent No.5 would be kept in abeyance and that further that the plan for construction sanctionded in favour of the petitioner and the respondent No.5 would also kept in abeyance until further orders.
2. The learned counsel appearing for respondent – BBMP has filed the memo which reads as follows:
MEMO “It is submitted that after going through the order via Annexure-L and also the entire original file, even which was made available to the respondent No.5, it was observed that the orders passed by the Joint Commissioner (BBMP) was the order without issuing notices to the parties. Hence, the said order at annexure ‘L’ requires to be set aside by affording an opportunity to both the parties to enable BBMP to pass fresh order.”
3. It is noticed that this matter had come up on different dates of hearing and parties have been heard as regards grant of interim order and that the interim order was granted by this Court on 24.01.2019, whereby certain directions were passed including that the petitioner was required to file an undertaking that he would not put up any further construction beyond basement and ground floor except incidental works for the purpose of completion of structure that was partially put up and that no further construction would be put up in accordance with the interim order passed on 14.12.2018. The undertaking had been filed by the petitioner which is part of the record. It is not in dispute that the original records relating to the proceedings before respondent – BBMP were made available for the inspection of the learned counsel for respondent No.5.
4. The learned counsel for the respondent – BBMP has taken the stand that the impugned order requires to be set aside as notice to the parties have not been issued. This aspect of the matter relating to non issue of notice is not in dispute. What comes out is, that the order passed at Annexure-L is pursuant to an enquiry. In such proceedings admittedly no notice is issued to the parties. In the light of the said submission and memo filed by the learned counsel for the respondent, it would be appropriate, taking note of the contentions of both the parties and the controversy on hand which includes the identity of the property, the respondent – BBMP is to be permitted to have a re-look at the matter in accordance with law after following the procedure as stipulated under law.
5. Though counsel for the petitioner points out that notice was issued at an earlier point of time. Clearly such notice would be of no avail to dispense with the notice when an enquiry is commenced and culminates in passing of an order which visits the parties with civil consequences. More importantly, when a writ is sought to be issued against an authority and the said authority concedes that the order requires to be set aside and requires to be followed up by a fresh enquiry, the High Court in exercise of powers under Articles 226 and 227 would not embark on any further enquiry in light of the stand of the public authority.
6. The learned counsel for the respondent No.5 would submit that though he has no serious objection for remand of the matter, he would submit that the interim order earlier granted by this Court is to be continued till the disposal of the proceedings by the respondent – BBMP as it is submitted that the petitioner cannot take advantage of setting aside of the impugned order and take action so as to defeat the orders passed in favour of the predecessors in title of respondent No.5 pending before the civil Courts and appellate Courts. However, it must be noted that the enquiry in the present case is limited to examining the validity of the order at Annexure- L.
7. In the light of the submission of the learned counsel for respondent – BBMP, the order requires to be set aside. Needless to state that in the interregnum till orders are passed by the respondent – BBMP, if the petitioner is found to be bound by orders passed by the civil Courts and appellate Courts, it is for the respondent No.5 to ensure compliance with such orders by way of appropriate proceedings. This is particularly so as counsel for the petitioner disputes the contention of respondent No.5 that he is bound by the orders as contended. It is beyond the scope of the present proceedings to pass such orders or directions.
8. However, it is made clear that the respondent – BBMP to take expeditious steps on the complaints made by respondent No.5 and also representations of the petitioner within a period not later than 8 weeks from today.
In the light of the disposal of the matter, no further orders as called for as regards pending application and the same is disposed of as not requiring any orders.
Sd/-
JUDGE NS