K. Parameshwar Bhat vs Bruhat Bangalore Mahanagara Palike and Sri Vijayakumar Patil

Hon''ble Mr. A.S. Bopanna, J.—The petitioner is before this Court assailing the provisional order and the confirmation order dated 24.09.2010 and 04.102010 which are impugned at Annexures-A and B to the petition. The brief facts as contended is that the petitioner is the owner of the property bearing No. 141, 3rd Main Road, Doresanipalya, Panduranganagar, Bannerghatta Main Road, Bangalore. In respect of the said property, the petitioner has put up construction and is in enjoyment of the same. The respondents have issued notice as contemplated u/s 321 (1) of the Karnataka Municipal Corporations Act, 1976 (for short the ''Act'') alleging that the construction put up is unauthorized and illegal. Despite the reply being sent by the petitioner, the confirmation order dated 04.10.2010 has been passed u/s 321(3) of the Act. The said orders have been called in question in the instant petition.

It cannot be in dispute that in respect of an order u/s 321(3) of the Act, an appeal is provided to the Karnataka Appellate Tribunal u/s 443-A of the said Act. However, in the instant case, the question is as to whether the matter requires to be considered in the instant petition without relegating the petitioner to the alternate remedy.

First and foremost, it is to be noticed that the instant petition was filed as far back as on 18.10.2010 and the matter has been pending for more than two years before this Court. Secondly, the circumstance under which the instant proceedings had been initiated against the petitioner is after the area wherein the property of the petitioner is situate had come within the jurisdiction of the larger urban area i.e., Bruhat Bangalore Mahanagara Palike and in that circumstance Section 321 is invoked. Therefore, I am of the opinion that the instant petition can be considered without relegating the petitioner to the alternate remedy in the facts and circumstances of the case.

In that light, a perusal of the notice dated 24.09.2010 would indicate that no specific allegation with regard to the illegal or unauthorised construction put up by the petitioner is indicated except to vaguely state that such construction put up by the petitioner is unauthorized. In the circumstance as noticed above, the property was not within the area over which BBMP had jurisdiction when construction was put up. The petitioner in his reply had indicated that he had obtained approval from Bilekahalli Grama Panchayat and in that regard, the construction had been put up based on such approval granted by the erstwhile local authority who had jurisdiction over the area. It is in that context, the matter was required to be considered by the respondents herein as to whether the said plan and the licence granted by that authority was sufficient for construction which was put up and not by insisting upon a fresh plan from the respondent authority. Neither the notice u/s 321(1) or the ultimate order passed u/s 321(3) of the Act would refer to these aspects of the matter.

The documents available on record would indicate that the petitioner had in fact purchased the property as far back as on 20.02.1992 and thereafter approval had been taken from the authority within whose jurisdiction the property was situated at that juncture. Therefore, in such circumstance, if at all the construction put up is contrary to the approval plan which had been granted by the authority who had jurisdiction at that juncture, this was to be specifically indicated by the authority and thereafter appropriate action could have been taken. Therefore, in a circumstance of the present nature, the impugned notice and the order cannot be sustained. They are accordingly quashed. If in fact the construction is unauthorized in the manner indicated above, only by stating appropriate details any action could be taken against the petitioner after providing sufficient opportunity.

In terms of the above, the petition stands disposed of. No costs.