IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR. JUSTICE L. NARAYANA SWAMY WRIT PETITION NO OF 2011(LB-BMP)

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 10 TH DAY OF JULY 2014 BEFORE THE HON BLE MR. JUSTICE L. NARAYANA SWAMY WRIT PETITION NO OF 2011(LB-BMP) BETWEEN: ASTRAZENECA PHARMA INDIA LTD., HAVING ITS REGISTERED OFFICE AT AVISHKAR PB NO.2483, OFF BELLARY ROAD, HEBBAL, BANGALORE , REPRESENTED BY ITS LEGAL AND SECRETARIAL MANAGER MR.RAGHUNATH RATH PETITIONER (BY SRI UDAYA HOLLA, SR.COUNSEL FOR UDWADIA & UDESHI ASSTS.) AND: 1. BRUHATH BENGALURU MAHANAGARA PALIKE BANGALORE REPRESENTED BY ITS COMMISSIONER 2. ASSISTANT EXECUTIVE ENGINEER YALAHANKA, SUB DIVISION, YALAHANKA REGION, BRUHATH BENGALURU MAHANAGARA PALIKE BANGALORE RESPONDENTS (BY ASHWIN S.HALADY, ADV. FOR R1 & R2)

2 2 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTICE DTD VIDE ANNEX-A ISSUED BY THE RESPONDENTS AND ALLOW THE PETITIONER TO COMPLETE THE CONSTRUCTION IN ACCORDANCE WITH KIADB APPROVED BUILDIGN PLAN THIS WRIT PETITION COMING ON FOR PRL. HEARING THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R The petitioner was allotted site in Sy.No.5/1D, 52E, 52F, 6/2G and 6/1H of Venkatala village, Yelahanka Hobli, Bangalore North Taluk by the KIADB on lease-cum-sale basis for establishment of its manufacturing unit. Sale deed has been executed on and after obtaining necessary licence and certificate from the KIADB, he has put up construction and since from the date of construction in the year 2007, the petitioner has been paying taxes to the B B M P. The petitioner s company started functioning and as on today the manufacturing activities are going on. When such being the case, the respondent Corporation without there being any authority of law, issued a notice dated in which it is stated that if the petitioner does not comply requirements, necessary action would

3 3 be taken u/s 321(1)(2) of Karnataka Municipal Corporation Act, 1976, hereinafter referred to as `the Act for short. 2. It is submitted by the petitioner that sanction plan and licence as required to be obtained under the KIADB Act are obtained and the constructions have been put up and the petitioner is functioning and as such the Corporation has committed an error in not looking into the provisions of the Act while issuing the notice. Copy of the sale deed and building plan sanctioned by the Board are produced. 3. The learned Senior Counsel referred Section 47 of the KIAD Act and submitted that KIAD Act is a special Act which overrides the other provisions of the Act in so far as it is inconsistent with the KIAD Act. Regulation 16 of the KIAD Regulations, 1969 Annexure-III & IV stipulates that all buildings and constructions for which the plans and elevations have to be approved by the Authorized Officer of the Board. Hence the Board is the proper authority to issue licence and sanctioned plan for which the petitioner need not approach the Corporation for the reason that the provisions of the Act does not apply. In

4 4 the circumstances, the notice issued by the Corporation u/s 321(1) & (2) of the Act is inapplicable since K I A D B has allotted industrial shed to the petitioner and the provisions of the KIAD Act and the Regulations are applicable and not the provisions of the Act. In support of his submission, the learned Senior Counsel referred the order passed in W A No.591/2007 disposed of on where it has been held that issuance of notice for approval of sanction plan and licence by the first respondent Corporation is without the jurisdiction and approaching the Corporation would not come into picture for the reason that the Corporation does not have any authority to issue such licence. 4. The learned counsel for the Corporation supports the notice issued as per Annexure-A. Under Section 321(1) & (2) of the Act, the Authorized Officers of the Corporation are required to demolish or direct alteration of the building which is unlawfully commenced or carried on or it is about to be completed. The petitioner had not obtained any licence or sanction plan as it is required under the KIAD Act itself for which the learned counsel

5 5 referred Section 16, which contemplates that the building regulations which the allottee will have to comply which are given in Annexure-I appended to the Regulations. Item 3 further requires that All buildings shall be constructed in accordance with the Municipal Byelaws and Regulation in force from time to time as well as any other law, Rules and Regulations in force relating to the constructions. As per this provision, before putting up and completion of any construction, the petitioner should have obtained licence or certificate under the provisions of the Act from the Corporation. What is permitted to the Authorized Officer of the Board is only in respect of plans and elevations etc., are to be approved by them. The learned counsel referred Schedule II of the Board Regulations 1969 item No.3 of the KIAD Act which mandatorily stipulates that all buildings have to be constructed in accordance with the Municipal Byelaws and Regulations, which means to say, before putting up any construction or building, licence should be obtained from the Corporation. When the provisions of the special enactment namely, KIAD Act itself provides for

6 6 obtaining plan and licence, the impugned notice cannot be faulted. 5. Heard both. Undisputedly, petitioner has been allotted site under the KIAD Act to put up construction in the industrial area. The person who is beneficiary under the KIAD Act has to satisfy the requirements of provisions of the very Act. Section 47 of the KIAD Act stipulates that provisions of this Act applies notwithstanding anything inconsistent therewith contained in any other law. Here the other law in the present case is KMC Act which is not called in question so far as in respect of inconsistency between each other. In a case reported in 1976 KLJ 290 it has been held that only the inconsistency is applicable to Sections 12, 28 & 47. If the petitioner is aggrieved of any provisions of law, he should have challenged the constitutional validity of any provisions of law. None of the provisions are questioned. Schedule II of the Building Regulations further makes it mandatory to the petitioner to obtain building licence for the purpose of construction and construction should be in accordance with the Municipal Byelaws and Regulations. On

7 7 plain reading of the provisions, it has to be understood, before putting up construction, ordinarily all the constructions or any constructions before its completion, one should obtain permission or licence from the Municipality. It is true, the authorized officer under the KIAD Act is empowered to issue approval for plans and elevations in respect of industrial constructions whereas under the KMC Act it is not so. What is to be noticed is that the industrial constructions are within the civil constructions and all the industrial constructions should be in consonance with the civil constructions for which special provisions have been made i.e., building byelaws under the KMC Act. Section 16 of the KIAD Act, Schedule II item No.3 if they are read harmoniously, it gives scope that there cannot be any construction without there being licence from the Municipality. 6. The learned Senior Counsel submitted under the KIAD Act, it is only the authorized officer has to give licence and approve the plan and not the licence under the Act. It is submitted that even as per Section 16 Item No.3 of II Schedule, it makes the Municipal office to inspect the construction and

8 8 order to be passed in case any deviation is made as provided under Section 321(1) & (2) of the Act. It cannot be accepted for the reason that it was enabling the officers under the Act, which is not after the construction but before putting up any construction. The provision has been made to put surveillance while putting up construction. The authorities are not supposed to demolish the building in case a deviation. But they have been empowered even to give licence even before putting up construction. The applicability of the provisions of the KMC Act, the petitioner has accepted stating in the representation dated (Annexure-R Para-2) that we need to know the exact amount to be paid as construction licence fees so that we can pay the fees at the earliest to obtain the licence. Therefore, it shows that petitioner has made effort to pay the licence fee for the purpose of construction. When such is the acceptable provisions of law and it has been acted by the petitioner, it is not open for the petitioner to challenge Annexure-A. It is true when there are two provisions applicable in respect of a common subject, then the Court should interpret by accepting harmonious interpretation. By accepting the same, I hold that

9 9 the provisions of KMC Act and the KIAD Act so far as obtaining licence for putting up construction, there is no conflict between the provisions of the two enactments. Under the KIAD Regulations itself, the petitioner is required to obtain licence under the Act. Hence the notice issued as per Annexure-A is justifiable, sound and proper and does not call for interference. Writ Petition stands rejected accordingly. AKD Sd/- JUDGE