Rukhiya Bi and Others vs M. Vinod Kumar and Others

B.V. Nagarathna, J.—Though the writ petitions are listed for consideration of I.A. II/2014 filed by petitioners, I have heard learned counsel for the parties at length on earlier occasions as well as today and writ petitions are disposed by the following Order.

Petitioners have assailed building plan bearing No. SP No/210/2012-13 dated 21.01.2013 (Annexure ''A'' to writ petitions) sanctioned by 6th respondent - Assistant Executive Engineer, J.C. Nagar sub-division, Bruhath Bengaluru Mahanagara Palike (BBMP). They have also sought a direction to respondent Nos. 2 to 8 to demolish the illegal and unauthorized construction put up by 1st respondent on property bearing No. 5, 1st main road, Ex-servicemen Colony, R.T. Nagar, Bangalore.

Briefly stated, facts are that 1st respondent had sought for sanction of a building plan in respect of the aforementioned property. By impugned order dated 21.01.2013, 6th respondent accorded sanction to the building plan submitted by 1st respondent herein. Petitioners, who claim to be residents of Ex-servicemen colony in R.T. Nagar, have challenged the sanctioned plan on the ground that it is illegal and the construction that has been put up by 1st respondent is consequently, unauthorized. It is in the aforementioned premise that order dated 21.01.2013, by which the plan submitted by 1st respondent was sanctioned by 6th respondent, is assailed.

I have heard learned counsel for petitioners and learned counsel for respondent No. 1 and learned counsel for respondent Nos. 2 to 8.

This Court on 27.08.2014, issued notice to respondents and thereafter, matter was listed on 25.09.2014 and 29.10.2014. On that day, this Court has recorded the submission made by learned counsel for BBMP., directed the BBMP., to file statement of objections incorporating the submissions and also enclosing the relevant documents pertaining to the sanction. Order dated 29.10.2014 reads as under:--

"Sri. Joshi, learned Counsel for Bruhat Bangalore Mahanagara Palike submits that the plan sanctioned in favour of 1st respondent itself is in violation of the building bye laws 2003.

According to learned counsel, the supervision certificate under bye-law 3.2.11, commencement certificate under bye-law 5.2, inspection notes under bye-law 5.3, foundation certificate under bye-law 3.2.9 and occupancy certificate under bye-law 5.6 are not available in the file.

In addition, learned Counsel submits that the site in question is in the intersection and therefore bye-law 17 requires maintaining of minimum distance of 10% of the frontage of the plot or 3 meters whichever is less from the point of intersection which is not provided in the plan. So also item No. 2 in Table 5 under bye-law 9.2 requires that the building of the petitioner being more than 14.35 meters height, to have open space of 5 meters as set backs on all sides, which is not found in the sanction plan.

Lastly, it is stated that bye-law 16 provides for parking space and since the 1st respondent is a Doctor by profession and intends to have an X-ray machine installed in the basement, there is a need to provide for one car parking space for every four beds which is also not found in the plan. In short, learned Counsel submits that the plan approved itself is in violation of the provisions of the bye-laws.

To a question of this court as to who was the gentleman who sanctioned the building plan, learned Counsel submits that one B. Rukkanna, Assistant Executive Engineer is the person who is presently working at Hombegowdanagar, Wilson Garden Bangalore.

Learned Counsel is requested to ensure filing of statement of objections incorporating the aforesaid submissions and also by enclosing the relevant documents pertaining to the sanction.

Learned Counsel for 1st respondent submits that though house warming ceremony is concluded, nevertheless, 1st respondent has not occupied the premises.

If that is so, 1st respondent is directed not to carry out any interior or exterior works, civil works, painting work, modification or occupy the premises until further orders.

Relist next week."

Thereafter, learned counsel for BBMP., has filed statement of objections on 11.11.2014 contending that there are violations of BBMP Building Bye-laws 2003, while approving the plan. Para Nos. 2 to 15 of statement of objections read as under:--

"2. That, the Petitioner No. 1 to 5 also have violated building construction permissions as such, they cannot maintain this writ petition.

That, the BBMP has initiated action U/S. 308 of K.M.C. Act, 1976 for violations against the Petitioner No. 1 to 5.

That, in this case, total height of the building plan submitted by the Resp. No. 1 is 14.35 mts as per Annexure-A, as such it falls under Bye Law No. 9.2. and Table -5 shown in the BBMP Building Bye-laws-2003 are applicable, hence the set-back is to be calculated as per Sl. No. 2 of the Table No. 5 which stipulates 5.00 mts on all sides. In this case the map approved is erroneous and is not as per the BBMP Building Bye-laws-2003.

That, in this case, there is violations of BBMP Building Bye-laws-2003 in approving the map.

That, earlier AEE Mr. Rukkanna (Now working at Hombegoudanagar, BBMP, Bangalore) and Mr. Atif Mohd. Asst. Engineer, (working now at Ward No. 49, Lingarajpur) are the officers approved the erroneous plan.

That, Parking Rules as per Bye law No. 16 R/w. Table No. 13 has not been followed.

That, since the site is a corner site, situated at intersection of two roads, Bye-Law No. 17.0 is applicable and frontal set-back is 10% above the required set-back of 5.00 mts, as per BBMP Building Bye-laws-2003.

That, there is no record of having obtained the Foundation certificate as per Bye-law No. 3.2.9 of Building Bye-law of BBMP-2003.

That, there is no record of having obtained the Commencement certificate from the Bangalore Development Authorities as per Bye-law No. 3.2.10 of Building Bye-law of BBMP-2003.

That, there is no record of having obtained the supervision certificate as per Bye-law No. 3.2.11 of Building Bye-law of BBMP-2003.

That, there is no record of having obtained the occupation certificate as per Bye-law No. 5.6 of Building Bye-law of BBMP-2003.

That, due to violations of the construction of building as per approved map, we have initiated action U/s.321 of KMC Act, and the Resp. No. 1 has obtained Interim Order of Status-quo from the Hon''ble KAT Bangalore.

That, the licensed Architect/Engineer Mr. L. Rama Subba Reddy, B.E., Civil having Reg. No. BCC/BL-3.6/E-3133/07-08 having his address at No. 397, Rajesh Nilaya, Kempegouda Road, Kodigenahalli, Bangalore has prepared the erroneous plan.

Hence the approved map needs to be withdrawn and modified, and construction needs to be brought as per BBMP Building Bye-Laws-2003."

But Respondent Nos. 2 to 8 have sought for dismissal of writ petitions.

Thereafter, Commissioner of BBMP., has filed his personal affidavit on 13.11.2014. Paragraph Nos. 5 to 8 read asunder:--

"That, it is found that prima-facie there is also an error, on the part of the Engineer, viz.,

Though the proposed building would be in Residential area, still you prepared a plan, to enable to use basement for commercial purpose, viz., for installation X-ray machine.

You failed to provide structural design, before foundation was laid nor supervised the building under construction in ensuring that, the building does not deviate buildings bye-laws 2003.

That, immediately when the above were noticed, BBMP has issued a show-cause notice dated 12-11-2014 to the above named three persons calling upon them to show-cause as to why departmental enquiry should not be initiated against the erring officials and as to why suitable action should not be taken against the Registered Engineer.

That, their reply is awaited and further suitable action would taken against them in accordance with law.

That, the then Commissioner on 18-08-2007, submitted a note to the then Administrator, who was exercising the powers of the Standing Committee for Town Planning and Improvement, that on 06-07-2007, Plans Scrutiny Committee has recommended for:

The adoption of Regulations of RMP-2015 along with Building Bye-laws 2003 until BBMP Bye-laws are revised (for additional clauses which are not part of Zoning Regulations of RMP-2015).

Revision of Building Bye-laws of BBMP to bring it in conformity with the RMP-2015."

The Commissioner placed the above recommendation before the Administrator and submitted that, if approved the Revision of Building Bye-laws of BBMP., will be taken up immediately. Also, a circular instruction to all Plan Scrutiny Authorities of BBMP will be issued to follow the Zoning Regulations of RMP-2015 (alongwith Building Bye-laws 2003) until the building bye-laws of BBMP are revised. The Administrator on 22-08-2007 has approved. Till today, there appears no change in the stand. "

On a conjoint reading of the statement of objections as well as affidavit of the Commissioner extracted above along with submissions of learned counsel for BBMP., as recorded by this Court on 29.10.2014, it clearly emerges that BBMP., is of the prima facie opinion that the plan sanctioned by 6th respondent on 21.01.2013 (Annexure ''A'' to writ petitions) in the name of 1st respondent is illegal. If the respondent - BBMP., is categorically stating before this Court that plan sanctioned is prima facie illegal, then a direction would have to be issued to the respondent - BBMP., to take steps in that regard and in accordance with law.

In that view of the matter, it would be necessary for this Court to enter into any debate or on merits of the question with regard to the validity of the plan sanctioned by respondent - BBMP.

In that view of the matter, this Court is of the considered view that it is not necessary for the Court to give a finding on the correctness or otherwise of the impugned sanctioned plan, respondent Nos. 2 to 8 are directed to take steps in accordance with what has been stated in the statement of objections and affidavit of the Commissioner referred to above and in accordance with law vis-�-vis the impugned plan. It is expected that respondent Nos. 2 to 8 would take steps in an expeditious manner in that regard by issuing notice to 1st respondent and give him an opportunity of being heard before any adverse order is passed vis-�-vis the plan sanctioned on 21.01.2013.

At this stage, learned counsel for BBMP., states that notices have been issued to the Architect, who had submitted the plan as well as the Engineers of BBMP who have sanctioned the plan, copies of which have been produced as Annexures to the affidavit of the Commissioner of BBMP. Therefore, the matter now rests with the respondent - BBMP., to issue notice to 1st respondent and after hearing him and other parties, who have to be heard in the matter, pass fresh orders with regard to the validity or otherwise of the plan sanctioned on 21.01.2013.

Learned counsel for petitioners brought to my notice the fact that this Court had directed 1st respondent not to occupy the premises in question until further orders. In response, learned counsel for respondent - BBMP., states that 1st respondent cannot occupy the premises in question until occupancy certificate is obtained by him from BBMP and that issuance of the occupancy certificate would also depend upon the orders to be passed on the validity of the plan sanctioned by 6th respondent. Therefore, respondent - BBMP., while considering the validity or otherwise of the plan dated 21.01.2013 and passing orders thereon, shall also consider the question of issuance of occupancy certificate to respondent No. 1 based on the order i.e., a speaking order, to be passed on the aforesaid question. The said exercise to be completed in an expeditious manner and within a period of two months from the date of receipt of certified copy of this order. Till the aforesaid exercise is carried out, all concerned parties are directed not to precipitate the matter.

With the aforesaid observations and directions, writ petitions are disposed.

All contentions of both parties are left open.

In view of disposal of writ petitions, I.A. II/2014 for direction does not survive for consideration and it is ordered to be filed.