IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR WRIT PETITION No.4545/2019 (LB-RES) BETWEEN PAVITRA. M. K. D/O KALAPPA M M AGED ABOUT 47 YEARS, RESIDING AT NO.2, 3RD MAIN, 7TH CROSS, RAMAIAH LAYOUT, BANGALORE-560084.
(BY SRI NARAYANA BHAT M, ADV.) AND 1. BRUHAT BANGALORE MAHANAGARA PALIKE REPRESENTED BY ITS COMMISSIONER N.R.SQUARE, BANGALORE-560001.
2. ASSISTANT EXECUTIVE ENGINEER, MARUTI SEVA NAGAR, BANGALORE-560001.
3. MR. GLADSON ROBINSON, S/O ROBINSON ISAAC ANATHRAJ, AGED ABOUT 43 YEARS, NO.69, 9TH CROSS, KARMACHAND LAYOUT, LINGARAJPURAM, BANGALORE-560084.
... PETITIONER ... RESPONDENTS (BY SRI ARAVIND M.NEGLUR, ADV. FOR R1 & R2, SMT. R. THEAN MOLI, ADV. FOR R3.) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD:2.11.2018 PASSED IN I.A.NO.IX IN APPEAL NO.143/2016 PRODUCED AS ANNEXURE-X AS THE SAME IS VIOLATIVE OF ARTICLE 14 AND 21 OF THE CONSTITUTION AND ALSO IS VIOLATIVE OF SEC.321, 300 AND 303 OF THE KMC ACT OF 1976 ETC.
THIS WRIT PETITION COMING ON FOR ‘ORDERS’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioner and the learned counsel for respondent No.3 and the learned counsel for respondent Nos.1 and 2.
2. The petitioner claims that she is the owner of a portion of the property in Survey No.64/3 presently assigned property No.6, 3rd Main, Ramaiah Layout, Kacharakanahalli, Ward No.29, Bengaluru – 560 084.
3. It is the case of the petitioner that one Mrs. J Rees purchased an extent of 2.2 guntas of land from one Sayamagari Papanna under the sale deed dated 27.08.1980 out of the property bearing Survey No.64/3 of Kacharkanahalli village. That by sale deed dated 10.11.1994 the said Mrs. J Rees sold a part of the said property in favour of her son-in-law by name Eugene Paul. That the said Eugene Paul obtained a building license from the BBMP bearing LP. No.97/97-98 dated 13.03.1998. That the construction was put-up in the year 1998 and a set back was allowed on the southern side of the premises and it is in this portion a sewerage line has also been laid and compound wall was put up by the said Eugene Paul with the consent of the vendor, that is, his mother-in-law and the owner of the adjoining property Mrs. J Rees. That the said Eugene Paul sold the said property under a registered sale deed dated 02.02.2005 to one Sabu Varghese and boundaries under the sale deed are as under:-
“East by - 25 feet road, West by – Site Nos.50 and 51, North by Site No.61 and South by – Remaining portion belonging to J Rees.”
4. That the alienation in the name of the said Sabu Varghese was along with the appurtenants including the sewerage line and 2 feet set back on the southern side and water connection provided by the BWSSB and the electrical installation provided by the BESCOM. That the said Sabu Varghese under the sale deed dated 25.04.2005 sold the property in favour of the petitioner and at the time the petitioner purchased the property, the property was a developed one, consisting of fully constructed tenement and a compound wall. It is also relevant to note that the erstwhile owner of the adjoining property, owned and held by the 3rd respondent has not objected for putting up of the compound wall or laying off the sewerage and a water lines. Pursuant to the purchase the entries in the revenue records have been transferred in the name of the petitioner.
5. It is contended by the petitioner that the remaining portion of the land owned by J Rees which measures 30 feet x 40 feet and was sold by her to her nephew the third respondent herein. It is thereafter the dispute has arisen between the petitioner and the third respondent.
6. The northern boundary of the third respondent’s property is described as property held by the petitioner. That the third respondent started putting up construction without abiding by the building by-laws or the sanctioned plan. Aggrieved, the petitioner made a complaint on 19.07.2014 to the jurisdictional Engineer and followed it up with two more complaints on 19.11.2014 and 29.01.2015 as the complaints were not acted upon, the petitioner made one more representation to the Commissioner, BBMP on 30.01.2015 and to the Executive Engineer on 31.01.2015 and it was under the said complaint it was brought to the notice that the ongoing construction by the 3rd respondent was in violation of the building by-laws and the sanctioned plan.
7. Despite the sustained efforts by the petitioner to compel the BBMP to play its part as mandated under law, the same was of no avail. Hence, the petitioner was constrained to approach the Lokayukta by a complaint dated 23.02.2015. On receipt of the same, the Lokayukta is said to have issued notices to the Executive Engineer, Ward No.29 and Assistant Executive Engineer of the said ward. The notices appear to have activated and galvanized the BBMP into action and proceedings were initiated against the third respondent and after the completion of the proceedings under Section 321 of The Karnataka Municipal Corporations Act, 1976 (for short ‘the Act’), the 3rd respondent has approached the Karnataka Appellate Tribunal, under the appeal registered as appeal No.143/2016 and the same is pending.
8. In the interregnum, the Palike Engineers i.e. the 2nd respondent is said to have conducted a measurement of the property held by the petitioner and has concluded that the petitioner has encroached the property of the 3rd respondent to an extent of 2.32 feet or 0.71 square metres and further intimated the petitioner to remove the encroachment within seven days. The same was replied to by the petitioner denying the allegation and one of the specific grounds set out by the petitioner to deny the allegation of encroachment is that there has been no measurement of the 3rd respondent’s site.
9. The said objection assumes significance in the light of the subsequent efforts by respondent to place the same on record before the appellate tribunal. In fact, an application I.A. IX is preferred by the 3rd respondent before the Karnataka Appellate Tribunal in the pending appeal seeking leave of the tribunal to bring on record the said proceedings. The petitioner is the 3rd respondent before the appellate tribunal. What is sought to be placed on record by the 3rd respondent in appeal before the tribunal is the proceedings initiated by the BBMP for removal of alleged encroachment of a private property by the BBMP.
10. The provisions of Section 321 of the Act reads as under:-
“321. Demolition or alteration of buildings or well- work unlawfully commenced, carried on or completed-(1) If the Commissioner is satisfied,-
(i) that the construction or re-construction of any building or hut or well,-
(a) has been commenced without obtaining his permission or where an appeal or reference has been made to the standing committee, in contravention of any order passed by the standing committee; or (b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based; or (c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye- laws; or (ii) that any alteration required by any notice issued under Section 308, have not been duly made; or (iii) that any alteration of or addition to any building or hut or any other work made or done for any purpose into, or upon any building or hut, has been commenced or is being carried on or has been completed in breach of Section 320, he may make a provisional order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Commissioner, has been unlawfully executed, or make such alterations as may, in the opinion of the Commissioner, be necessary to bring the work into conformity with the Act, rules, bye-laws, directions or requisitions as aforesaid, or with the plans or particulars on which such permission or orders was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well or hut.
(2) The Commissioner shall serve a copy of the provisional order made under sub-section (1) on the owner or builder of the building or hut or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed.
(3) If the owner or builder fails to show cause to the satisfaction of the Commissioner, the Commissioner may confirm the order, with any modification he may think fit and such order shall then be binding on the owner.
(4) If the construction or reconstruction of any building or hut is commenced contrary to the provisions of Section 300 or 314 and the Commissioner is of the opinion that immediate action should be taken, then, notwithstanding anything contained in this Act, a notice to be given under sub-section (2) shall not be of less duration than twenty-four hours and shall be deemed to be duly served if it is affixed in some conspicuous part of the building or hut to which the notice relates and published by proclamation at or near such building or hut accompanied by beat of drum, and upon such affixation and publication, all persons concerned shall be deemed, to have been duly informed of the matters stated therein.”
11. In the proceedings initiated under Section 321 (1) of the Act the BBMP authorities have noted and detailed certain deviations and thereafter they followed it up by a proceeding under Section 32(2) of the Act. It is interesting to note that these proceedings against the petitioner who was the complainant, precede the proceedings against the 3rd respondent against whom allegations of violation have been leveled by the petitioner. The proceedings against the third respondent under the provisions of Section 321(1) of the Act are initiated on 25.11.2015 several months after the initiation of proceedings against the complainant.
12. That apart, one more development of interest is the proceedings dated 27.03.2015, produced as Annexure-H, whereby the second respondent has attempted to usurp the jurisdiction of the civil court and has attempted to adjudicate the property rights of private parties.
13. In the appeal preferred by the third respondent, the tribunal is adjudicating the correctness of the proceedings dated 14.12.2015 i.e. the confirmation order passed by the BBMP under the provisions of Section 321 (3) of the Act as against the third respondent appeal. In the said appeal application I.A. IX is preferred to bring on record the alleged proceedings said to have been initiated against the petitioner herein under the provisions of Section 321 (1) and (2) of the Act. The appeal admittedly is under the provisions of 443 (A) of the Act which reads as under:-
“443-A. Appeal to Karnataka Appellate Tribunal or District Court.-(1) Any person aggrieved by any notice issued, action taken or proposed to be taken by the Commissioner under sections 308,309,321(3) may appeal,-
(i) to the Karnataka Appellate Tribunal in case of the [Bruhat Bangalore Mahanagara Palike];
(ii) to the District Court having jurisdiction in case of other Corporations.
(2) The decision of the Karnataka Appellate Tribunal or as the case may be the District Court shall be final.
(3) All appeals made against any notice issued or other action taken or proposed to be taken by the Commissioner under sections 308, 309 and 321(3) and pending before the standing committee on the date of commencement of this section shall stand transferred to the Karnataka Appellate Tribunal, or as the case may be, District Court and such appeals shall be disposed off by them as if they were filed before them.]”
14. A bare reading of the provisions of 443(A) of the Act makes it apparent that the scope of the appeal is restricted to the order appealed and the appellate tribunal cannot conduct a roving enquiry. In fact a reading of the order dated 02.11.2018, would indicate that it is this very exercise, that the tribunal is attempting to do.
15. The findings rendered by the tribunal while disposing off the application causes consternation. It has rendered a finding that the property conveyed in favour of the petitioner measures 30 feet x 40 feet. It has also rendered a finding that the petitioner herein purchased the property after the sale in favour of the third respondent/appellant. It failed to take note of the fact that the property was sold by the erstwhile owner in favour of the petitioner’s predecessor in title on 10.11.1994 and a construction has also been put up by the said purchaser who is none other than the son-in-law of the original title holder i.e. the said J Rees. The construction has been put up way back in 1998 and thereafter it stood conveyed has under the deed of conveyance executed by the said Eugene Paul in favour of Sabu Varghese who in turn said to have sold the property in favour of the petitioner.
16. The finding by the tribunal that the petitioner has put up a construction on 21.04.2005 appears to be contrary to the material placed before this court. The further reasoning at paragraph No.10 is even more alarming. The appellate tribunal has reasoned that the documents i.e. the copies of the notices initiating proceedings by the BBMP as against the petitioner are relevant because they demonstrate a serious question of not leaving of set back area by the appellant and the same requires to be addressed with reference to the allegation of encroachment of some portion of the property by the petitioner.
17. In the considered opinion of this court the tribunal has misdirected itself. The scope of enquiry before the tribunal could only be with regard to the proceedings initiated against the appellant-third respondent and it ought to have looked into the sanction plan and the contents of the proceedings and the findings rendered by the BBMP in exercise of the powers vested in it under the provisions of Section 321 of the Act. The tribunal could not have expanded the scope of enquiry to act as a civil court and determine the issue of encroachment inter-se the parties.
18. No doubt, the Palike has initiated proceedings against the petitioner and this Court is not going into the merits of those proceedings. The reasoning and finding by the tribunal to allow I.A. IX stands contradicted by the building plan sanctioned in favour of the appellant. A copy of which is produced as Annexure-G wherein the measurement of the appellant’s holding, the property in respect of which the plan is sanctioned, is said to measure 9.14 metres x 12.19 metres which otherwise translates into 30x40 feet. The tribunal has also lost sight of the crucial fact of the petitioner’s construction having been put up as early as in 1998 and has proceeded on the footing that the petitioner has put up the construction after the sale of the site in favour of the appellant-3rd respondent.
19. Another disturbing feature as is noted supra, is the action of the then Assistant Executive Engineer Smt.Geetha and the Assistant Engineer Sri.Vinay appears to have exceeded the scope of their duty by conducting measurement of the sital area of the petitioner. The said action is justified by the learned counsel appearing for the Palike by contending that there was a direction by the Upa- Lokayukta to carry out the survey of the property. Assuming for a movement that the Officer had carried out the survey of the property pursuant to the direction of the Upa-Lokayukta, the point remains that the alleged or so called survey has been carried out by the officer and not by the Competent Authority or the Survey Authority. There is no material to demonstrate that the BBMP solicited the assistance of the Competent Authority or the Survey Authority.
20. It is fairly admitted by the learned counsel that the task of measuring the property or survey of the property has been carried out by the Officers themselves. The said notice alleging encroachment or calling upon the petitioner to remove the encroachment is virtually in the nature of the declaration and direction issued by the Civil Court, which powers are not vested under the BBMP more particularly when it relates disputes pertaining to private property.
21. The act is one of highhandedness and a colorable exercise of power as a consequence of the complaint made by the petitioner to the Lokayukta. Probably, it is a coercive steps to ensure withdrawal of the complaint by which she has complained of inaction on the part of these officers.
22. In the opinion of the Court, it appears that the same is an act of misfeasance. Even as per the BBMP, no documents i.e., sanction accorded in respect of measurement of respondent No.3-appellant site which is said to be measuring 9.14 x 12.19 meters i.e., 30 x 40 feet is looked into.
23. It is not the case of the BBMP that they have issued sanction plan and but they have not measured the sital area held by respondent No.3 before issuing the sanctioned plan.
24. If that be the case, if the document issued by the BBMP to respondent No.3 affirms the measurement of respondent No.3 site as measuring 30 x 40 feet, then the subsequent measurement pursuant to the alleged survey appears to be misfeasance. Further more, the petitioner has also placed on record one more sketch issued by the said AEE marked as Annexure-J1 to the writ petition wherein 0.65 meters is shown separately. It probablise the case of the petitioner that the said extent is the land utilized by the BWSSB for laying sewerage and water pipeline.
25. Be that as it may, the act of the then Officer AEE Smt.Geetha and AE Sri.Vinay who have authored the proceedings at Annexure-H dated 27.03.2015 requires to be looked into by the BBMP by conducting an enquiry.
26. It is further directed that the Commissioner, BBMP-respondent No.1 herein shall conduct an enquiry and look into the facts and circumstances leading to the proceedings dated 27.03.2015 prepared and issued by the Officer Smt.Geetha, AEE and Sri.Vinay, AE. The respondent No.1 shall complete the enquiry within eight weeks and submit a report to this Court.
In view of the above discussion, the writ petition is allowed. The order dated 02.11.2018 passed by the Karnataka Appellate Tribunal on I.A.No.9 in Appeal No.143/2016 marked as Annexure-X to the writ petition is quashed.
It is submitted by the learned counsel for the petitioner that the Tribunal has reserved the appeal for judgment and has closed the hearing and that by the said judgment, the petitioner has been deprived of the opportunity to contest the appeal on merits. It is made clear that the Appellate Tribunal shall pass orders after affording an opportunity of hearing to the petitioner herein. The date of hearing shall be fixed by the Appellate Tribunal and on the date so fixed, the petitioner/respondent No.3 in the appeal shall submit her case without seeking for any adjournment.
In view of allowing of the main petition, I.A.No.2/2019 for vacating stay does not survive for consideration. Hence, the same is rejected.
Sd/- JUDGE Chs*/VM CT:HR