IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR WRIT PETITION NO.28205/2019 (LB BMP) BETWEEN SMT. SARITA M BARFA W/O MANGAL CHAND P. BARFA, AGED ABOUT 36 YEARS, R/AT NO.579, 1ST CROSS, 3RD MAIN, NEAR POLICE STATION ROAD, HEBBAL, BENGALURU-560024.
(BY SRI VINOD C S, ADV.) AND 1. THE BRUHAT BENGALURU MAHANAGARA PALIKE, N R SQUARE BENGALURU-560002 REPRESENTED BY ITS COMMISSIONER.
2. THE ASST. EXECUTIVE ENGINEER, KODIGEHALLI SUB-DIVISION BRUHAT BENGALURU MAHANAGARA PALIKE 9TH MAIN ROAD, ‘D’ BLOCK, SAHAKARANAGAR BENGALURU-560092 ... PETITIONER ... RESPONDENTS (BY SRI AMIT DESHPANDE, ADV. FOR R1 & R2.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDERS PASSED BY THE HON'BLE KARNATAKA APPELLATE TRIBUNAL, PASSED ON I.A.NO.II, DATED 25.06.2019, IN APPEAL NO.563/2019 (VIDE ANNX-'A') AND STAY THE OPERATION AND EXECUTION OF NOTICES ISSUED BY THE R-2, UNDER SECTION 321(3), DATED 24.01.2019, OF THE KMC ACT 1976 (VIDE ANNX-'H') THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioner.
Learned counsel Sri. Amit Deshpande accepts notice on behalf of respondents.
2. Petitioner is before this court being aggrieved by the impugned order passed by The Karnataka Appellate Tribunal in appeal No.563/2019 (BBMP). The case of the petitioner is that she had applied for approval of building plan, a copy of which is produced as Annexure-C and the plan consists of a stilt floor, ground floor, first floor, second floor and terrace floor plans, elevation and AA Section are also mentioned in the plan. The said plan came to be approved and license came to be issued vide Annexure-D. Learned counsel for the petitioner would invite the attention to the endorsement in the building license which reads as under:-
“stilt + gf (which is read as 4f) + sf & 4 unit only”. He even submits that the four unit would include the ground + three floors and when queried about the letters “gf”, he would submit that the same has to be read as “4f”. Unfortunately, for the petitioner the numerical 4 is also written by the same person and it is written differently and hence, the argument that it is not “gf” but “4f” requires to be rejected as the person who has made the endorsement has written the numerical 4 in a different manner even to the naked eye. Hence, the argument prima-facie is unacceptable. He would contend that it is for the respondents-BBMP to clarify as to what “sf” would stand for.
3. Be that as it may, admittedly the building plan applied for by the petitioner is for stilt floor + ground + first and second floor and terrace. Learned counsel for the petitioner would contend that no notice has been issued to him. These are facts which have been appreciated by the appellate tribunal while considering the petitioner’s prayer for grant of interim relief, after having considered the matter, has deemed it fit to stay demolition only in respect of that portion of the building which has been put up in accordance with the sanction plan and has made it clear that the interim order would not apply to the construction made above the second floor i.e. the 3rd floor.
4. In view of the sanction plan which is produced as Annexure-C, this court does not find any error or perversity in the reasoning set-out by the appellate tribunal denying any relief in respect of the unauthorized construction. The petitioner does not deny the construction of the third floor but would attempt to justify the same by placing reliance on the building license plan. The contention of the petitioner that a building license has been granted for four floors + stilt, to state the least, is illogical, as the application for sanction of building plan is made only in respect of stilt + 3 floors i.e. ground, first, second and terrace floor. The license fee is also calculated on the basis of the super built up area. No case is made out by the petitioner to demonstrate that he has paid license fee in respect of four floors. It is also illogical to contend that the BBMP has granted license to construct an additional floor when the plan submitted did not contain the details of the additional floor. Further, any construction beyond three floors would also require certification by the structural engineer which is also not produced. In that view of the matter, I do not find any merit in the writ petition or justification warranting interference to consider the order passed by the appellate tribunal. At this juncture, learned counsel for the petitioner would place reliance on the order passed by the co-ordinate Bench of this court in W.P. No.4906/2006 (LB- BMP) to contend that no opportunity has been granted. In that there is no proper service of notice as mandated under the Act. The same requires adjudication of facts and is an exercise to be conducted by the appellate authority which is the final fact finding body. Even otherwise, the said contention requires to be rejected as the petitioner himself has placed on record the notice issued under Section 308 of The Karnataka Municipal Corporations Act, 1976 (for short ‘the Act’) followed by notice under Section 321(1), 321(2) and 321(3) of the Act. Be that as it may, the said contention requires to be addressed by the appellate authority. In that view of the matter, all contentions are left open for the parties to agitate the same in the pending appeal.
The writ petition stands rejected.
Sd/- JUDGE Chs* CT-HR