1/7 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 26th DAY OF JULY 2017 BEFORE THE HON'BLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION Nos.7975-7976/2017 (LB-BMP) BETWEEN:
1. SRI. K. VASANTH KUMAR S/O SHRI. THIMMA POOJARI AGED ABOUT 56 YEARS.
2. SMT. K. VIJAYALAKSHMI W/O SHRI. K. VASANTH KUMAR AGED ABOUT 51 YEARS.
BOTH RESIDING AT No.12/2 9TH CROSS, GANAPATHYNAGARA AVALAHALLY, BYATARAYANAPURA BANGALORE 560026.
(BY SRI. SHYAM SUNDAR M.S., ADV.,) AND:
1. THE COMMISSIONER, BBMP ... PETITIONERS BRUHATH BENGALURU MAHANAGARA PALIKE BBMP HEAD OFFICE, HUDSON CIRCLE BANGALORE.
2. THE ASSISTANT EXECUTIVE ENGINEER PADMANABHANAGAR SUB-DIVISION BRUHATH BENGALURU MAHANAGARA PALIKE BANGALORE 560070.
... RESPONDENTS (BY SRI. Dr. R. RAMACHANDRAN, ADV.,) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE AN APPROPRIATE WRIT OR ORDER OR DIRECTION, SETTING ASIDE THE IMPUGEND FINAL ORDER/JUDGMENT PRONOUNCED ON 18-01-2017 (WRONGLY MENTIONED AS 18- 01-2016 ON THE TITLE PAGE OF THE JUDGMENT) BY THE KARNATAKA APPELLATE TRIBUANL IN APPEAL No.503/2016 (WHICH IS PRODUCED AT ANNEXURE-A TO THE WRIT PETITION); AND PASS SUCH OTHER ORDERS OR DIRECTIONS DEEMS FIT TO BE PASSED IN FAVOUR OF THE PETITIONER UNDER THE CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr. Shyam Sundar M.S. Adv. for Petitioner Dr. R. Ramachandran, Adv. for Respondents 1. The present petition has been filed by the petitioners aggrieved by the order passed by the Karnataka Appellate Tribunal on 18.01.2016 dismissing of their Appeal No.503/2016. The relevant portion of the order passed by the learned Tribunal in paragraph-11 of the said order is quoted below for ready reference:-
“11. On examining the case file obtained from the Respondents, it is seen that the Appellant has purchased the subject property under a registered sale deed dated 28-09-2012. Thereafter the khatha has been transferred by the Respondents in the name of the Appellant. The Appellant himself is in absolute possession & enjoyment of the above property and the same is evident from the documents viz. Revenue records/tax paid receipts produced by him. He has obtained sanction plan from the Respondent on 26-06-2013 for putting up construction in the said property vide LP No.1345/2012-13 and he has obtained sanction plan for construction of stilt, first, second and terrace floors, and the Appellant has stated in his appeal that he has put up construction in accordance with the said sanction plan. However, the Respondents have issued provisional order on 08-11-2013 in terms of Section 321(1) & (2) of the KMC Act, and since the Appellant did not opt to file any objection to the same, confirmation order has been issued on 08-11-2013 in terms of Section 321(3) of the KMC Act. The Appellant has stated in his appeal that challenging the said confirmation order, he has filed a suit in OS No.25058/2014 before the City Civil Court, Bengalooru and has obtained an order of temporary injunction against the Respondents. The Respondents entered appearance in the said suit, and submitted their written statement wherein they have contended that they have issued the provisional & confirmation orders under Sections 321(1), (2) & (3) of the KMC Act, and that notices have been served, and have also been pasted on the walls of the building. Hence the above appeal has been filed against the Respondents. On scrutiny of the provisional order it is seen that on the front side towards the 4th Main Road, setback of 3 meters was to be left, but lesser setback has been left. Similarly, on the 5th Main Road, setback of 3 meters & 2 meters had to be left, but lesser setback has been left, and due to this, there will be difficulties caused to the general public while plying on the said roads. Further, larger area of stilt floor has been constructed as against the area mentioned in the sanction plan i.e., as per the sanction plan, 233.61 sqm. of stilt floor had to be constructed, but in actual 358.92 sqm. has been constructed, and hence the orders passed by the Respondents are in accordance with law, and that this Tribunal cannot interfere in the said order. That the provisional & confirmation orders have been passed in time to the Appellant and the same is evident from the files obtained from the Respondents. In view of the reasons stated above, this appeal is not maintainable and the Appellant has not putforth any material to demonstrate that he is having valid grounds to maintain the above appeal, and hence we answer the issues 2 & 3 in the negative”.
2. The learned counsel for the petitioners has submitted before the Court that though the delay was condoned by the said Tribunal on the ground that the impugned orders under Section 321(1) and confirmation order under Section 321(3) of the KMC Act, 1976, were not served upon the petitioners properly but pasted the same on the walls of the building later on, but while condoning the delay in filing the appeal which was filed by the petitioners immediately upon coming to know of the pasting of these orders, the petitioners filed the said appeal before the learned Tribunal, but on merits of the case, the learned Tribunal has given a finding that these orders were served upon the petitioners in time and therefore, on merits, the petitioners had no case about the deviations found in the impugned orders under Section 321 of the Act.
3. Having heard the learned counsels for the parties, this Court is satisfied that there is some incongruity in the findings of the learned Tribunal and before arriving at its own findings of fact on the basis of relevant material, the petitioners ought to have been afforded a reasonable opportunity to lead their evidence in the matter to establish that there were no deviations in the sanction plan. Since the petitioners does not appear to have raised such objection before the Authorities below and even before the Tribunal in the absence of proper service upon them, therefore, the petitioners deserve to be given the said opportunity even now before the learned KAT, which is the final fact finding body under the provisions of the KMC Act, 1976.
4. Accordingly, the present petition is allowed, for statistical purpose and setting aside the impugned order Annexure-A dated 18.01.2016 passed by the learned Tribunal, the matter is remanded back to the learned Tribunal for decision afresh in accordance with law, after giving a reasonable opportunity of hearing to the petitioners in the matter including the chance of leading the evidence. The parties without any further notice, in the first instance, may appear before the said Tribunal on 08.08.2017 and the learned Tribunal is expected to decide the appeal afresh within a period of three months thereafter. Till, 08.08.2017, the status-quo as it exists shall be maintained by the parties and thereafter, the situation may be abide by the further orders to be passed by the learned Tribunal. No costs.
Sd/- JUDGE Srl.