IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR WRIT PETITION Nos.2475-2476/2019 (LB BMP) BETWEEN 1. SMT R CHITRA W/O SRI A P RAMESH KUMAR AGED ABOUT 39 YEARS, 2. SRI A P RAMESH KUMAR S/O LATE PANDIAN, AGED ABOUT 43 YEARS, BOTH ARE R/AT NO.28/1, SADARAMUDALLAPPA LANE, DOODAMAVALLI, BENGALURU-560004.
... PETITIONERS (BY SRI VIVEK REDDY, SR. ADV. FOR SRI SATISH T S, ADV.) AND 1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE, N.R.SQUARE BANGALORE-560 002.
2. THE ASSISTANT EXECUTIVE ENGINEER BRUHAT BANGALORE MAHANAGARA PALIKE, MARUTHI SEVANAGAR SUB DIVISION, BENGALURU-560042 ... RESPONDENTS (BY SRI SHIVANAND METI, ADV. FOR C/R1 & R2.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE HON'BLE KARNATAKA APPELLATE TRIBUNAL IN APPEAL NO.913/2017 DATED 31ST OCTOBER 2018, DISMISSING THE APPEAL FILED BY THE PETITIONERS UNDER SECTIN 443-A OF KARNATAKA MUNICIPAL CORPORATION ACT 1976, QUESTIONING THE CORRECTNESS OF TEH CONFIRMATION ORDER PASSED BY THE R-3 IN PROCEEDING DATED 19.06.2017 ANNEXURE-A.
THESE WRIT PETITIONS COMING ON FOR ‘ORDERS’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioners.
2. On 10.07.2019, Sri.Vivek Reddy, learned Senior counsel was heard on behalf of the petitioners and respondent No.2-BBMP was also directed to produce the records pertaining to the proceedings initiated against the petitioners in respect of construction declared to be illegally put up by the Corporation pursuant to its order passed under Section 321 (1) (2) of the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as ‘the Act’ for short) and confirmation order passed under sub-Section 3 of Section 321 of the Act. Questioning the correctness and illegality of the confirmation order passed by respondent No.2 in proceedings bearing No.AEE/MSN/WN27/CO/01/2017-18 dated 04.04.2016, an appeal came to be registered as Appeal No.384/2016. Thereafter, the Appellate Tribunal after hearing the parties was pleased to dispose off the appeal by judgment dated 10.02.2017 by setting aside the impugned proceedings dated 04.04.2016 and by issuing certain directions which in the opinion of this Court was perse contrary to the provisions of Section 455 of the Act. The Appeal in fact came to be allowed on the ground that notice is vague and no particular violation committed is detailed. It also held that the records do not disclose any mahazar or spot inspection having been conducted and on the said basis, the Appellate Tribunal proceeded to held that though notice is issued, it has not been served on the appellant properly. What the said finding implies cannot be presumed by this Court and thereafter, the Appellate Tribunal proceeded to set aside the provisional order and the confirmation order on the premise that sufficient opportunity has not been afforded to the petitioners and it was further pleased to remit the matter back to the Authorities.
3. It was contended by the learned Senior counsel that the respondents were required to go through the entire rigmarole of issuance of notice ensuring notice on the violator is in compliance with the provisions of Section 455 of the Act and thereafter, ought to have caused hearing and thereafter, ought to have proceeded to pass the confirmation order.
4. On the first date, the petitioners’ counsel vehemently contended that no notice as per law has been served. He has also placed reliance on the ruling of the Co- ordinate Bench of this Court rendered in W.P.No.4906/2006. The order passed by the Division Bench on I.A.No.2/2016 in W.A.Nos.967-968/2016 whereby the Division Bench stipulated certain guidelines and one of the guidelines is that before confirming a provisional order, the officers should record his satisfaction that the provisional order is served on the owner/khatedar.
5. Placing reliance on the same, it was contended that there is not such recording of satisfaction. The said contention requires to be rejected in view of categorical findings rendered by the Appellate Tribunal that notice has been served and despite service of notice, the petitioners/appellants omitted to appear before the Authorities and hence, it is not open to the appellants to complain in respect of lack of sufficient opportunity. The said finding is not controverted by the petitioners.
6. That apart, perusal of the records of the respondents would reveal that an attempt was made to serve notice and the same has been served on the watchman on 20.04.2017 intimating the date of inspection. The officer of the respondent-Palike, conscious of the direction issued by the Tribunal has also recorded the same in the notice intimating the petitioners about proposed inspection of the premise which has been acknowledged by the employee of the petitioners.
7. That apart, it is seen that the said notice has also been dispatched through speed post to the address mentioned in the writ petition. Thereafter, the mahazar has been conducted, violations have been identified and communicated to the petitioners. In fact, the proceedings dated 09.06.2017 reveals that the parties have been intimated in respect of proposed inspection and the said proceedings have also been dispatched by way of speed post on 13.06.2017. That apart, whether the petitioners can even harp on compliance of Section 455 at this stage is itself a moot point. This is not the first round of litigation rather this is the third round of litigation.
8. The purpose and object of Section 455 is to preempt any arbitrary action by the Authorities. The contention of the petitioners that no proper service is effected in terms of Section 455 of the Act was appreciated and was one of the ground that the Tribunal relied upon to deem it necessary to interfere with the proceedings of the respondent- Palike. The proceedings by themselves are the proof of the fact that the petitioners are aware of the action initiated by the respondents. Thereafter the conduct of the petitioners would demonstrate that the petitioners have adopted this issue as a modus operandi to defeat the Statutory provisions of Section 321 of the Act. The provisions of the Act cannot be interpreted in a manner which would render otiose or unworkable any other provisions of the statute. If the argument of the petitioners that the notice ought to be served step by step in the manner stipulated under Section 455 is accepted, it would only amount to providing a premium to the violator and enabling them to get away scot-free. The another finding of fact rendered by the Appellate Tribunal is that the petitioners are aware of the allegations made against them. The Tribunal has rendered a finding in this regard in paragraph No.8 which reads as under:
“8. Irrespective of either service or non service of the PO dated 09.06.2017 in the appeal appellants have not disputed the allegations of the particulars of the deviation including unauthorized construction of 3rd floor noted in the PO dated 09.06.2017.”
9. The Tribunal has also appreciated the fact of service of notice and reasoning for accepting the valid service is set out in detail in paragraph No.5 (e) to 5 (k) to hold that the respondents have effected valid service.
10. In that view of the matter, the reliance on the ruling of the learned Single Judge and the Division Bench is of no avail.
In the light of the above observations, the petitions being bereft of merits stands dismissed.
There shall be no order as to costs.
VM CT:HR Sd/- JUDGE