Premila Nalini Grubb vs The Commissioner

Ram Mohan Reddy, J.—Having heard Sri S. Shaker Shetty, learned Counsel for petitioner and Sri K.N. Putte Gowda, learned Counsel for respondents 1 and 2/Bruhat Bengaluru Mahanagara Palike (''BBMP'' for short) as well as Sri L.P.E. Rego, learned Counsel for respondent No. 3, apparently, the lis brought before Court is over the garage on the South Eastern corner of the immovable property in question permitted to be retained by the respondent/BBMP while according sanction for construction of a multistorey residential building with a basement floor.

In the first instance, the BBMP having taken action on the basis of a complaint lodged by 3rd respondent, one of the occupants of the apartment complex, led to proceeding under Section 321 followed by a confirmation order under Sub-section (3) of Section 321 of the Karnataka Municipal Corporations Act, 1976, (''the Act'' for short), which when, subject matter of appeal under Section 443-A of the said Act before the Karnataka Appellate Tribunal, the confirmation order was affirmed, leading to filing W.P. No. 35246/2003, whence a learned Single Judge by Order dated 27th February 2004 quashed the entire proceeding reserving liberty to the 3rd respondent to take such appropriate action against the petitioner before a competent Civil Court.

It appears that before filing of the writ petition, 3rd respondent had instituted O.S. No. 16565/2001 before the XIII Additional City Civil Judge, Bangalore for necessary declaration over the garage portion on the south eastern corner of the property on the allegation that it is not at the ground level since reconstructed during the year 1992 and therefore, the writ petitioner arraigned as defendant is not entitled to the benefit of permission granted while according sanction to the building plan. In addition it was asserted that the apartment complex requires setback area all round the building for easy movement of vehicles, as also for safety. That suit when decreed by judgment and decree dated 25.10.2005, the writ petitioner is said to have filed RFA No. 1725/2005, which was allowed and the judgment and decree of the trial court set aside and the suit dismissed, nevertheless, the learned Judge observed that the developer and owner cannot violate the building bye-laws by encroaching upon the set-back area necessary for safety and maintenance and the dismissal of the suit would not affect the rights of the plaintiff (3rd respondent herein) to move the appropriate authority or initiate fresh proceeding only with regard to set-back area.

Therefore there is an order of the learned Single Judge in W.P. No. 35246/2003, Annexure-A reserving liberty to the 3rd respondent to take such appropriate action against petitioner in a competent Civil Court and a Judgment and decree, of the learned Single Judge in RFA No. 1725/2005 dated 26th April 2013 reserving liberty to the 3rd respondent to initiate action in accordance with law in the matter of ensuring set-back areas meant as safety measure and for maintenance.

Viewed in this perspective, it is needless to state that it is for respondents 1 and 2 authorities of the BBMP to ensure compliance with the provisions of the Act read with rules and bye-laws framed thereunder, in so far as set-back areas are concerned. If that is so, then respondents 1 and 2 instead of issuing notice Annexure-B directing petitioner to demolish the building on the South Eastern corner, should have initiated action under the Act to ensure set back area for the building in view of safety, and therefore, notice Annexure-B directing demolition of the building in question calls for interference.

On 15.10.2014, the following order was passed:

"ORDER ON I.A. No. 1/2014

Heard learned Counsel for parties, perused the averments in the affidavit accompanying the application. Regard being had to the litigation, between the parties in writ proceeding before this Court and original suit followed by Regular First Appeal, coupled with the fact that question for decision making is, "whether the garage on the ground floor on the South Eastern Corner of the property in question, when retained, as disclosed in the Plan duly sanctioned was reconstructed in the basement level?", it is appropriate to permit the impleading applicant to come on record as proper and necessary party respondent No. 3. I.A. is accordingly allowed.

Petitioner to amend the cause title and serve a copy of writ petition along with annexures on the learned Counsel.

The main allegation of the 3rd respondent is that, ''if the garage was in existence on the ground floor on the South Eastern portion of the building, it ought to have been kept at that ground level and could not have been at the basement level'', and therefore, in the absence of a permission to put up a garage in the basement level, the new construction was without authority of law.

Sri K.N. Puttegowda, learned Counsel for BBMP to secure instructions and file a report as to whether the garage portion on the South Eastern side of the premises in question is at the ground level or at the basement level.

Interim order granted earlier is extended until next date of hearing.

Call on 27.10.2014."

In compliance with the said order, respondents 1 and 2 have filed Inspection Report enclosed to the memo dated 27.10.2014 indicating the levels at which basement floor is existing and the floor of the garage on the south eastern corner of the property in question. According to the inspection report, basement floor is at 5 feet 8 inches below the ground level while garage is situated 3 feet 10 inches below the ground level. The copy of the plan to which sanction is accorded for construction of multistorey building provides for Section AA whereunder the ''ground line'' is found to exist 34 inches above the floor of basement. The nomenclature therein is mentioned as "ground line". It is not known as to whether the floor of the garage on the ground floor on south eastern corner of immovable property is also situated at the same level as the ground line. It is necessary to observe so because the sanction plan accorded permission to the petitioner to retain the garage on the south eastern portion said to be at the level of the ground line.

The report of the engineer is opposed by filing statement of objections of the petitioner enclosing the certificate of one Edgar Demello Architects, Annexure-E stating that the plinth level of the garage is approximately 34 inches below the Hall Road, due to constant re-asphalting of Hall Road over last 80 years, seeking to sustain the existence of the garage on the South Eastern corner as it stood on the date of sanction of the building plan. One M.A. Subahan & Associates, Architects and Interior Designers have also filed a Technical Report, Annexure-F supporting the certificate, Annexure-E.

Without going into the merit or demerit of the claims of either of the parties, suffice it to notice that it is for respondents 1 and 2 to take action in accordance with law in order to ensure due compliance with the observations in the judgment and decree dated 26th April 2013 in RFA No. 1725/2005 and pass orders in accordance with law.

In the result, this petition is allowed. Notice Annexure-B is quashed with liberty to respondents 1 and 2 to ensure action in accordance with law as noticed supra.