IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 19 TH DAY OF NOVEMBER 2014 BEFORE THE HON BLE MR. JUSTICE RAM MOHAN REDDY

Transcription

1 1 R IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 19 TH DAY OF NOVEMBER 2014 BEFORE THE HON BLE MR. JUSTICE RAM MOHAN REDDY WRIT PETITION No.29795/2014 (LB-BBMP) BETWEEN: SRI KAMLESH KUMAR, S/O SRI GHEESULAL, AGED ABOUT 31 YEARS, RESIDING AT NO.FLAT NO.303/304, 3 RD FLOOR, SHREE APARTMENTS, 6/13, KRISHNA ROAD CROSS, BASAVANAGUDI, BANGALORE (SRI P.D.SURANA, ADV.) PETITIONER AND: 1. THE COMMISSIONER, BRUHAT BANGALORE MAHANAGARA PALIKE, BANGALORE CITY CORPORATION OFFICES, N.R.SQUARE, BANGALORE THE ASST. EXECUTIVE ENGINEER, SHANTHI NAGAR SUB DIVISION, 7 TH FLOOR, PUBLIC UTILITY BUILDING, BRUHAT BANGALORE MAHANAGARA PALIKE, M.G.ROAD, BANGALORE ASST. ENGINEER, WARD NO.117 (OLD WARD NO.70), SHANTHI NAGAR SUB DIVISION, 7 TH FLOOR, PUBLIC UTILITY BUILDING, BRUHAT BANGALORE MAHANAGARA PALIKE, M.G.ROAD, BANGALORE

2 2 4. SUSHIL KUMAR, S/O UTAMCHAND DHARIWAL, AGED ABOUT 41 YEARS, RESIDING AT AND ALSO AT NO.54/1, GROUND FLOOR, BASAPPA ROAD, SHANTHI NAGAR, BANGALORE ALSO AT NO.8/1, 2 ND CROSS, SWASTHI ROAD (LAKSHMI ROAD), SHANTHINAGAR, BANGALORE SMT.DIMPLE KUMARI, W/O SUSHIL KUMAR, AGED ABOUT 33 YEARS, RESIDING AT AND ALSO AT NO.54/1, GROUND FLOOR, BASAPPA ROAD, SHANTHI NAGAR, BANGALORE ALSO AT NO.8/1, 2 ND CROSS, SWASTHI ROAD (LAKSHMI ROAD), SHANTHINAGAR, BANGALORE (BY SRI V.Y.KUMAR, ADV. FOR R-1 TO R-3; SRI H.M.MURALIDHAR, ADV. FOR R-4 AND R-5) RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF MANDAMUS DIRECTING THE DISMANTLING OF THE ILLEGAL CONSTRUCTION AS PER THE PROVISIONS OF KARNATAKA MUNICIPAL CORPORATION ACT MADE BY RESPONDENTS 4 AND 5 ON PROPERTY BEARING NO.8/1, 2 ND CROSS, SWASTI ROAD (LAKSHMI ROAD CROSS) SHANTHI NAGAR, BANGALORE , ETC. THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

3 3 O R D E R The neighbour of respondents 4 and 5 has preferred this petition for the following reliefs: (a) to issue a writ of mandamus directing the dismantling of the illegal construction as per the provisions of Karnataka Municipal Corporation Act made by respondents 4 and 5 on property bearing No.8/1, 2 nd cross, Swasti Road (Lakshmi Road Cross), Shanthi Nagar, Bangalore Further appoint a Court Commissioner to carry out the said exercise on behalf of respondents 1 to 3, in the interest of justice. (b) Prohibit respondents 4 and 5 from occupying the building constructed on property bearing No.8/1, 2 nd Cross, Swasti Road (Lakshmi Road Cross), Shanthi Nagar, Bangalore till the removal of the illegal construction.

4 4 2. The immovable property bearing No.8/1, II Cross, Lakshmi Road Cross, Bangalore, belonging to respondents 4 and 5, jointly, is said to be located adjacent to property No.8/2 belonging to the petitioner. It is alleged that respondents 4 and 5 commenced construction of the building on property No.8/1 in violation of the Building Byelaws of the Bruhat Bangalore Mahanagara Palike, for short BBMP and the Building Plan sanction for construction of a residential building, following which petitioner made a representation to respondents 1 to 3-BBMP which when not considered led to filing W.P.No.4972/2012, whence this Court directed the BBMP to initiate action to remove the illegal construction by order dated According to the petitioner, construction of the building by respondents 4 and 5 was commenced during June, 2012 and by the time writ petition was filed, ground, first and second floors were erected, and in the process of laying the roof for the third floor. It is further stated that the Asst.Executive Engineer issued

5 5 notice under Section 321 of the Karnataka Municipal Corporations Act, 1976, for short KMC Act, requiring respondents 4 and 5 to remove the illegal construction followed by a final order of demolition which was impugned in Appeal No.1344/2012 filed by respondents 4 and 5 before the Karnataka Appellate Tribunal. Despite the said orders under the KMC Act, respondents 4 and 5, it is alleged, with impunity, continued the illegal construction of the third and part of the fourth floor though without sanction. Therefore, petitioner filed W.P.No.3876/2013 for appropriate directions to BBMP to remove the illegal construction, more particularly over the third and fourth floors which was disposed of by order dated Annexure-B, with a direction that Appeal No.1344/2012 pending on the file of the KAT be disposed of within two months therefrom, while the BBMP was directed to take action in accordance with law with regard to construction put up by respondents 4 and 5, not subject matter of Appeal No.1344/2012. It is further stated that the order of

6 6 demolition, subject matter of Appeal No.1344/2012 did not relate to illegal construction put up by respondents 4 and 5 on the third and fourth floors of the property. In addition, it is stated that the KAT, by Order dated allowed the appeal, set-aside the order of confirmation and remitted the proceeding for fresh consideration over violation of the sanctioned plan. Petitioner asserts to have addressed a letter dated to the BBMP requesting them to take action to remove the illegal construction. 3. According to the petitioner, the building plan sanction as per LP No.OL/SP/1309/11-12 permitted the 4 th and 5 th respondents to put up construction of stilt, ground, first and second floors, on site bearing No.8/1, II cross, Lakshmi Road Cross, Shanthinagar. The plan so sanctioned though required 4 th and 5 th respondents to leave set back areas in the stilt floor measuring 4.10 mtrs on the front, 2.70 mtrs on hind portion; 1.0 mtr on the left and 2.50 on the right side of the said property, nevertheless, put up construction of

7 7 the building leaving a front set back of 1-1½ ft; on hind side- 1½ to 2 ft.; on the left side 1-1½ ft and; on the right side 1-1½ ft, occasioning deviation to an extent of 290%. So also it is alleged that the ground, first and second floors have also been constructed to the extent of stilt floor, which is serious violation. 4. During the pendency of Appeal No.1344/2012, though respondent No.2 issued a notice dt under Section 321(1) of the KMC Act and an order of demolition dt directing respondents 4 and 5 to remove the illegal construction in the second, third and fourth floors, nevertheless it is alleged, have not been executed. Learned counsel for the petitioner submits that respondents 4 and 5 preferred Appeal No.285/2014 calling in question the said notices and order and obtained an order of status-quo. It is further alleged that the third floor/terrace for which sanction is accorded is to an extent of sq.mtrs, while respondents 4 and 5 have put up construction measuring sq.mtrs.

8 8 5. The petition when heard on the following order was passed: The affidavit of G.M.Somashekhar, said to be the Asst. Engineer of Ward No.117, Old No.70 does not indicate issue of commencement certificate under Byelaw 5.3 of the Bangalore Mahanagara Palike Building Byelaws 2003, so also it does not indicate inspection of the work of construction, periodically, as required by the said Byelaw. It is not possible to accept the submission of the learned counsel for the BBMP that action was taken against the erring builders, respondents 4 and 5, only after the completion of the construction with 100% deviation on the front side of the second floor; 78% on the back side; 50% on the left side; and 25% on the right side, totaling 253% deviation. It is common sense that building cannot be erected in a day and must have taken sufficient time. It is not known as to what the engineers were doing when the construction was commenced in the year 2012 and submit that it came to the notice of one Vanaraj, Asst.Engineer. In the absence of that relevant material as to why action was not taken against respondents 4 and 5 until the

9 9 completion of the building, it is appropriate to direct the person who was in-charge as Asst. Engineer to file his affidavit and furnish all relevant material particulars by Thereafterwards on having heard the learned Sr.counsel for respondents 4 and 5, the following order was passed: Respondent Nos.4 and 5 who have put up construction allegedly contrary to the sanctioned plan and building bye-laws are directed to file an affidavit stating whether or not the building erected by them is strictly in accordance with the plan and if not the extent of deviation as certified by their architect who issued the supervision certificate under the building bye-laws, Sri Nanjunda Reddy, learned Senior Counsel for respondent Nos.4 and 5 who have put up construction submits that the appeal remedy is availed of and an order of status quo secured and therefore, the respondent would file statement of objections while the Tribunal may be directed to dispose of the appeal within a

10 10 time frame and thereafterwards pass orders in accordance with law. List on In compliance with the order dated , the Asst. Engineer filed an affidavit dated which was considered on and the following order passed: In compliance with the order dated , the then in-charge Assistant Engineer by name P.Vanaraja, S/o Purusaiah, has filed an affidavit dated stating that he was discharging duties as an Assistant Engineer in Shanthinagar Sub-Division of the respondent Bruhath Bangalore Mahanagara Palike ( BBMP for short) from to and that respondent Nos.4 and 5 made an application for sanction of building plan for construction of building on property No.8/1, 2 nd Cross, Swasthi Road, (Lakshmi Road Cross), Shanthinagar, Bangalore , which was accorded sanction by the Joint Commissioner (East) on (though it is dated according to the learned Counsel for BBMP). It is next stated that the

11 11 deponent noticed on , deviations in the construction of the building by respondent Nos.4 and 5 and on inspection, the deviations worked out to 65.15% on an average, following which order dated under Section 321 (1) and (2) of the Karnataka Municipal Corporation Act, 1976, Annexure-R1 was issued. It is further stated that despite the said orders, respondent Nos.4 and 5 did not take steps to remove the deviations and therefore, the Assistant Executive Engineer, by name Chandraiah of Shanthinagar Sub Division passed the order, dated , Annexure-R2 under Section 321(3) of the Act. Those orders, it is said, were challenged in Appeal No.1344/2012, whence, the Karnataka Appellate Tribunal set-aside the orders and remitted the proceeding to the Commissioner for fresh disposal in accordance with law by order, dated , Annexure-R3. 2. It is said that the present writ petitioner instituted W.P. No.3876/2013, whence a learned Single Judge, by order dated , Annexure-B directed BBMP to take action in accordance with law. The deponent further states that he was

12 12 transferred from Shanthinagar to Bommanahalli on According to the deponent, issue of commencement certificate as required under building bye law 5.2 is by the Assistant Director of Town Planning since the Commissioner, BBMP on delegated his powers under Sections 66 and 67 of the Act. Deponent at paragraph 12 states that the records do not disclose obtaining of a commencement certificate from the concerned authority before commencement of the construction work on the schedule property. 3. Heard the learned Counsel for BBMP. The deviation in the construction of the building is as recorded in the order dated and that though the building licence was granted on , nevertheless, the factum of illegal construction was noticed only on Learned Counsel submits that the records do not disclose either a commencement certificate or an occupancy certificate so also there are no notes relating to inspection as required by byelaw 5.3 of the bye-laws from to Learned Counsel submits that

13 13 action under Section 321 is commenced only after knowledge of deviation and not before. To a question of this Court as to what the officer was doing from to , learned Counsel submits that there are no records to show what he did. It is further submitted that in terms of clause 5.2 of the building bye-law, 2003, respondent Nos. 4 and 5 who are the owners of the building in question did not submit the required particulars in forms in schedule No.6 relating to commencement of the building and the footings, columns/foundation nor did the Assistant Director furnish a copy of the building plan to the Engineering Department and therefore, the deponent in the affidavit was handicapped and was totally kept in dark about the construction. The submissions of the learned Counsel for BBMP cannot be countenanced. 4. Apparently, the provisions of the Karnataka Municipal Corporation Act, 1976 are for the benefit of the Society at large so that the citizens are kept apprised of the rule and the building bye-law which they must abide, and failure to do so, consequences are

14 14 action under the said Act. The building plans are subject to building bye-law which is a regulatory mechanism and therefore, the requirement of the bye-laws will have to be strictly adhered to. The execution of adherence of the bye-laws, undoubtedly, vest with the Commissioner, BBMP who may or may not delegate his powers. The BBMP is a mammoth organization having officials in the hierarchy meant for ensuring rule of law. In fact, the service rendered by the engineers are said to be of great assistance, at a cost, reason for enhancing the licence fee for sanction of building plans from `100/- to a few lakhs. That was the submission of the Commissioner in W.P.No.2993/2008 and connected petitions. In short, it was said that every engineer would have to visit the place where erection of building is carried on by the owner or any other authorized person. 5. If that is the tenure of submission of the Commissioner, BBMP, then a duty is cast on the engineer by name Vanaraja, the deponent of the affidavit to have inspected the construction falling within his territorial jurisdiction, from onwards. There

15 15 is a vacuum as to what happened over the construction of building from to It is also not known as to who informed the deponent on over the illegal construction of the building. It cannot be assumed that the deponent of the affidavit became aware of the construction without anybody informing him about the same since he has not visited the spot for over a long period of time from to Ex-facie, the deponent is guilty of nonperformance of duty. 6. The submission of the learned Counsel that the deponent was not informed of the sanction of building plan by the Assistant Director of Town Planning Authority to whom the power of the commissioner is delegated is only a ruse to get over the difficult situation in which the deponent is placed. It is not the case of the deponent that the Deputy Director informed the deponent of illegal construction and therefore, he went to the premises on If he could, on his own, go on without any information from the Deputy Director, therefore it means he could have gone to the spot on onwards

16 16 every day and every moment when every brick was being installed in the erection of building falling within his territorial jurisdiction. Therefore, it is too farfetched for the learned Counsel for BBMP to contend that the deponent of the affidavit did not have the knowledge of construction of the building illegally by respondent Nos.4 and The Bangalore Mahanagara Palike Building Bye-Laws, 2003 is nothing short of a compendium of various regulations in the matter of construction of building, be it residential, commercial or industrial. Bye-law requires the issue of a certificate in form under schedule III by the competent architect/ engineer/supervisor who shall be undertaking the supervision. According to the learned Counsel, plan bears the signature of one Mr. S. Lakshmikantha, Architect, registered with the BBMP with No.3258/ That architect, with full knowledge of the fact that supervision certificate has to be issued, has not done so according to the learned Counsel. 8. Learned Counsel at this stage submits that he has not obtained instructions from the Assistant Director, Town Planning and the

17 17 Joint Commissioner of BBMP and would secure instructions and make his submission. Sri Nanjunda Reddy, learned senior counsel, on instructions submits that the instructing counsel also does not know whether respondent Nos.4 and 5 secured and submitted a supervision certificate along with plan for sanction and that he would take instructions, if given time. 9. Proceedings before this Court have always had to be adjourned for want of instructions though parties are fully aware of the nature of dispute brought before Court. It is sad to notice that even learned Counsel do not endeavor to secure all necessary instructions, more particularly, in this case, since this matter has been heard on day to day basis. 10. Be that as it may, bye-law 5.1 specifies that the grant of licence, approval of plan and specifications or inspections made by the authority shall not in any way relieve the owner of a building from full responsibility for carrying out the work in accordance with the requirements of the sanctioned building plan along with such conditions as have been

18 18 imposed while sanctioning the licence. Byelaw 5.2 requires commencement of work of construction within a period of two years from the date of issue of licence and requires the owner to give intimation to the authority of the intention to start work in the form prescribed in schedule VI. Further, the owner shall given intimation to the authority on completion of foundation or footings of the walls/columns on the foundation. Learned senior counsel for respondent Nos.4 and 5 submits on instructions that no such intimation was given by the owner as required by bye-law 5.2. Byelaw 5.3 provides for inspection by the authorities in addition to the responsibility of the owner to commence the work after securing commencement certificate in the form prescribed in schedule VII. Learned senior counsel submits that no such commencement certificate was obtained before construction of the building. 11. According to the learned senior counsel, respondent Nos.4 and 5 completed construction of the building during June 2013 and occupied the same immediately thereafter without securing occupancy certificate as

19 19 required by bye-law 5.6 and that property may have been assessed to property tax by the revenue department of the respondent BBMP. Per contra, learned Counsel for respondent BBMP submits that he has absolutely no information about the completion of the building, occupation of the building or the building being assessed to tax though he is fully aware of the fact that occupancy certificate is not issued. Clause (b) of bye-law 5.6 states that physical inspection by the authority is to find out whether building has been constructed in all respects as per the sanctioned plan and requirement of building bye-law including inspection wherever necessary while clause (a) of bye-law 5.6 requires that on an application by the owner, when accepted, the occupancy certificate shall be issued in the form in schedule IX provided building is in accordance with the sanctioned plan. Bye-law 5.7 mandates that no person shall occupy or allow any other person in any new building or part of a new building for any purpose whatsoever until occupancy certificate for such buildings or part thereof has been granted by an officer authorized to give such certificate, if in the opinion of that officer, in

20 20 every respect the building is complete according to the sanctioned plan and have to use for the purpose for which it is erected. Bye-law 6.0 provides for action over deviation during construction. 12. A bare perusal of the aforesaid provisions of the bye-laws and the submission of the learned senior counsel as well as that of the counsel for respondent BBMP, ex-facie respondent Nos.4 and 5 are guilty of violation of the bye-laws. The engineer incharge then, none other than Vanaraja is guilty of not discharging statutory obligation. It is brought to notice of this Court that Vanaraja was caught by Lokayuktha while accepting `50,000/- as bribe as indicated in the news paper dated This engineer, it is said has been deputed by the Government from the parent PWD department to the respondent BBMP and has been working there since four years and is kept under suspension in view of Lokayuktha raid. Less said the better of the said engineer. In fact, in one of the orders of this Court, the State Government was directed to recall all persons sent on deputation to BBMP and in that regard action

21 21 taken report was also filed stating that there were no more persons on deputation in BBMP, however, it is strange to notice that State Government has fallen back on its words by deputing Vanaraja from PWD to BBMP. 13. From the above, what can be gathered is that the BBMP after having collected enormous sums of money towards fee for sanction of building plan has failed to discharge its statutory obligations. Therefore, this is a petition fit for being clubbed and heard along with W.P.No.2993/2008 in which the challenge is to the enhancement of the licence fee for sanction of building plan and issue of licence. 14. In compliance with the order dated , learned senior counsel for respondent Nos.4 and 5 submits an affidavit of one Sushil Kumar, respondent No.4 who states that he has sworn to the affidavit on behalf of respondent No.5 who is his wife. That affidavit does not comply with the other requirement of the order dated relating to the extent of deviation as certified by their architect who issued supervision certificate under the building bye-law. Learned senior

22 22 counsel seeks a day s accommodation to file an affidavit and the certificate, if any. 15. Although it is stated in the affidavit that the deviations are compoundable in nature under the Karnataka Town and Country Planning (Regularisation of Unauthorised Development or Construction) Rules, 2014, nevertheless learned Senior Counsel in his usual form, is candid in his submission that the Rules may not apply to such deviations. A day s time is granted to respondents 4 and 5 to fully comply with the order dated The affidavit of Vanaraj, filed by the learned counsel for the Commissioner, BBMP is taken on record. Learned counsel for BBMP is also given a day s accommodation to fully comply with the order dated by furnishing all relevant material particulars relating to all department of BBMP. Re-list on a/w W.P.No.2993/ Apparently since a day s accommodation was permitted to fully comply with the order dated

23 , and the case was again adjourned to , the matter when heard, a direction came to be issued to the Commissioner in the following terms: This is a case where 4 th and 5 th respondents have violated rule of law and therefore, there is a need to direct the Karnataka Appellate Tribunal to dispose of the Appeal No.285/2014, which is listed for hearing on , after hearing the learned counsel on the very same day and to pass orders thereon. This appeal, it is said, relates to the construction of unauthorized 2 nd, 3 rd and 4 th floors only and not stilt, ground and 1 st floor, which is subject matter of this petition, according to the learned counsel for the petitioner. Pursuant to the Order dated in appeal No.1344/2012 Annexure-C, the respondent-corporation has not taken any action. However, learned counsel for the Corporation submits that if extended time, on at a.m., inspection of the building in relation to the stilt, ground and first floor will be conducted in the presence of Respondents 4 and 5 and on the very same day

24 24 the said respondents will be issued with notice, if deviations are found and report on In that view of the matter, time is extended upto Respondents 4 and 5 are directed to be present at the building on at a.m. without further notice. 9. The Commissioner having complied with the said order, submitted a report which when considered on , the following order was passed: Sri P.D.Surana, learned Counsel for petitioner submits that on , when Appeal No.285/2014 was listed before Karnataka Appellate Tribunal ( KAT for short) and copy of order dated passed in this petition directing the KAT to dispose of the appeal was made available to the KAT which when specifically pointed out, in opposition, counsel H.M.Muralidhar (HMM) opposed the disposal of the appeal by submitting that a reading of the order dated discloses that it only records the submission made on behalf of the proposed applicant and therefore, the KAT did not dispose of the appeal. Learned Counsel places for scrutiny of

25 25 the Court the certified copy of the order sheet dated maintained by the KAT. A reading of the order of this Court dated discloses a direction issued to the KAT to dispose of the appeal on , after hearing learned Counsel for parties, by passing an order. The order sheet dated in Appeal No.285/2014 clearly points to the statement made by HMM, Advocate representing the appellants therein that the order dated records only submission made by Sri P.D.Surana, learned Counsel. In the face of such a submission what is apparent and palpable is that the lawyer appearing for the appellant in the appeal interfered with and obstructed the due course of justice and therefore, has to be dealt with sternly and firmly to uphold the majesty of law. Since a lawyer is involved and not a party who made the submission, HMM is directed to show cause as to why action in accordance with law should not be initiated against him. List on In compliance with the order dated , the Commissioner, Corporation City of Bangalore files a mahazar report,

26 26 provisional order passed under Section 321(1) and (2) and inspection photos indicating 198.3% deviation in the construction of the building on the stilt, ground and first floor of the premises in question. Objections, if any, to the said report by On , learned counsel for respondents 4 and 5 filed an affidavit whence proceedings were dropped against him by order dated which reads thus: In compliance with the order dated , Sri H.M.Muralidhar, learned Counsel files an affidavit in the form of an explanation and submits that he has no intention to disregard the order of this Court or interfere with the judicial proceeding, while the submission made before the KAT was due to the I.A. filed by the learned Counsel for petitioner to implead the petitioner as a party respondent in the appeal before the KAT and in addition, there being no quorum in the KAT, as only the judicial member was presiding over the Court, while the non-judicial member was not available on In that view of

27 27 the matter, proceedings pursuant to order dated stands dropped. List on In the pleadings, it is noticed that one G.L.Somashekar said to be the Assistant Engineer, Ward No.117 filed an affidavit dated enclosing copies of documents and the order of the KAT. The 4 th respondent by name Sushil Kumar, S/o Utamchand Dhariwal filed an affidavit dated admitting that construction is not in accordance with the building plan sanctioned and that deviations were compoundable under the Karnataka Town and Country Planning (Regularization of Unauthorized Developments or Constructions) Rules, 2014 and further that appeal No.285/2014 is pending before the KAT and in which by order dated status-quo was directed. It was further asserted that the construction of the entire building was completed in the month of June 2013 and respondents along with their family have occupied the premises.

28 Petition is opposed by respondent Nos.4 and 5 by filing statement of objections, inter-alia making reference to the provisional and final orders of confirmation under the Act and the pendency of appeal. 13. The Assistant Engineer, Dasarahalli Division, one Mr.P.Vanaraja, Son of Purusaiah who is under suspension due to the trap conducted by Lokayuktha filed an affidavit, dated , reiterating the assertions made in the petition except over the allegations. Respondents 1 to 3 filed a list of documents on along with the inspection report of the Commissioner, while, learned Counsel for respondents 4 and 5 filed an affidavit dated over his conduct before the KAT. Respondent No.4 filed statement of objections dated to the report of the Commissioner stating that petitioner was present at the time of inspection and taking measurements and alleging that respondents have not taken proper measurement and that there are lot of discrepancies

29 29 in the measurement furnished in the report. Paragraph 3 it is stated thus: 3. It is respectfully submitted that in Annexure-R2 in respect of the front side of the building space is left (however these respondents are disputing this measurement). Even if this measurement is assumed to be correct, in the present repot those measurement have not been shown. On the other hand it is mentioned as there has been 100% deviation. Similarly there is lot of discrepancies in respect of measurement shown in present report which does not tally with the Annexure-R2. These respondents respectfully submit that the present report is confusing. In floor area statement total percentage of deviation is shown as 198.3%, on other hand in Annexure-R2 in Floor Area Statement the total percentage of deviation is shown as 62.7%. 14. Today, learned Counsel for respondents 1 to 3 files an affidavit of one N.G.Chandrappa, Assistant Director, Town Planning (East), BBMP stating that respondents 4 and 5 applied on for sanction

30 30 of a building plan under Suvarna Paravanige Scheme. This deponent states that his predecessor visited the spot, verified the documents and accorded sanction to the building plan and that respondents 4 and 5 have neither intimated nor applied for issue of a Commencement Certificate. Enclosed to the affidavit are copies of (i) joint affidavit of respondents 4 and 5 in terms of Annexure R-6 undertaking to put up construction in compliance with the building plan sanction as required under bye-law 5.1 of the Bengaluru Mahanagara Palike Building Bye-laws, 2003 (for short bye-laws ), (ii) affidavit of the registered Architect/ Engineer/ Supervisor and respondents 4 and 5 as required under bye-law 3.6 read with schedule IV of the bye-laws. 15. Heard the learned Counsel for petitioner, respondents 1 to 3 as well as Sri Lakshminarayana, the Commissioner/first respondent who is present and learned Counsel for respondents 4 and 5.

31 There is no more doubt that respondents 4 and 5 were permitted in terms of the plan sanction of which is accorded on bearing No.OL/SP/1309/11-12 to put up construction of- (i) stilt floor measuring sq.mtrs with FAR of 8.62, after deducting sq. mtrs towards parking; (ii) ground measuring sq. mtrs with FAR of equal area with 2 tenements; (iii) first floor measuring sq. mtrs with identical FAR area and 1 tenement; (iv) second floor measuring sq.mtrs with identical FAR area and 1 tenement; (v) terrace measuring sq.mtrs with a staircase deduction of sq.mtrs and no tenement; totaling to sq.mtrs. built area, with FAR sq. mtrs and the total number of tenements as four, on property bearing No.8/1, 2 nd Cross, Shanthinagar, Bengaluru. The plan specifically provides for set back on the front side (East) 4.10 metres, hind side (West) 2.70 metres, on the right side (North) 2.50 metres and on the left side

32 32 (South) 1 metre. The dimension of the site is shown as 6.70 metres North South and metres East West. The ground, first, second and terrace floor is described in the sketch detailing the location of living, kitchen, bed room and other rooms in each floor. The height of the building to be constructed is said metres with a parapet wall of 0.75 metres and staircase headroom of 2.20 metres. 17. It is admitted that respondents 4 and 5 have deviated from the building plan by constructing a building without leaving the set backs and put up 3 rd and 4 th floors without sanction or permission and did not obtain permission either by a fresh application or modification of the earlier plan. The inspection report of the Commissioner clearly indicates the extent of deviation, said to be twice the area permitted to be put up. Respondents 4 and 5 having erected the building were required to place before Court the exact and true extent of the building erected, after measuring the same, which is conspicuously not forthcoming, in other

33 33 words, respondents 4 and 5 have suppressed relevant material information essential for decision making. The statement on oath of the 4 th respondent in the affidavits and statement of objections to the report of the Commissioner that though there is deviation, in the first place they are entitled to regularization under the Karnataka Town and Country Planning (Regularization of Unauthorized Developments or Constructions) Rules, speaks volumes of the admission of fact. Admittedly, the aforesaid Rule is not brought into force and is inapplicable as submitted by the learned Senior Counsel on Secondly the measurements recorded by the Commissioner and as disclosed in the report alleged to be incorrect is of no consequence, since respondents 4 and 5 who put up the construction have not placed before Court the true and correct measurement of the building already occupied by them without obtaining an occupancy certificate. It was in these circumstances that the Court directed the

34 34 Commissioner to inspect the building and submit the report. 18. Bye-law 5.1 reads thus: 5.1.Responsibility of owner-the granting of licence, approval of the plan and specifications, or inspections made by the Authority shall not in any way relieve the owner of a building from full responsibility for carrying out the work in accordance with the requirements of the sanctioned building plan along with such conditions as have been imposed while sanctioning the licence. 19. In terms of the said bye-law, respondents 4 and 5 filed a joint undertaking by way of sworn statement, Annexure R-6 to the affidavit dated of N.G.Chandrappa, the Assistant Director of Town Planning, undertaking to put up the construction as per the sanctioned plan and adhere to the provisions of byelaw 5.1 of the bye-laws, while paragraph 6 of the undertaking reads thus:

35 35 6. I take full responsibility if the building is constructed in violation of sanctioned plan. When directed by the authorities, I will duly remove the violated portions. If I fail to do so within the time prescribed in the notice, I will not object to BMP authorities to remove the portion in violation of the sanctioned plan. In this event I agree to pay all expenses incurred by BMP. 20. As noticed at paragraph 10 of the order dated supra, commencement certificate under schedule VII was not obtained in terms of bye-law 5.2 and 5.3 by submitting required particulars in forms in schedule VI relating to footings and foundation. At paragraph 11 of the said order, supra, it is admitted that an occupancy certificate as required by bye-law 5.4 was not obtained nevertheless respondents 4 and 5 occupied the building. It is further admitted that the authorities were not informed to inspect the building after completion to verify whether the building was compliant with the building plan sanction and the bye-

36 36 laws, since bye-law 5.7 states that no person can occupy the building without an occupancy certificate, the occupation of the building by respondents 4 and 5, is illegal. 21. Section 115 of the KMC Act states that, if any building in the city is constructed or reconstructed, the owner shall give notice thereof to the Commissioner, within fifteen days from the date of completion or occupation of the building whichever is earlier. Section 310 states that, every person shall, within one month after the completion of the erection of a building or the execution of any such work, deliver or send or cause to be delivered or sent to the Commissioner at his office notice in writing of such completion, accompanied by a certificate in the form prescribed in the bye-laws signed and subscribed in the manner prescribed and shall give to the Commissioner all necessary facilities for the inspection of such buildings or of such work and shall apply for permission to occupy the building, while, sub- Section (1-A) reads thus:

37 37 (1-A) Notwithstanding anything contained in sub-section (1), where permission is granted to any person for erection of a building having more than one floor, such person shall, within one month after completion of execution of any of the floors of such building, deliver or send or cause to be delivered or sent to the Commissioner at his office, a notice in writing of such completion accompanied by a certificate in the form prescribed in the byelaws, signed and subscribed in the manner prescribed and shall give to the Commissioner all necessary facilities for inspection of such floor of the building and may apply for permission to occupy such floor of the building. Sub section (2) reads thus: (2) No person shall occupy or permit to be occupied any such building (or part of the building) or use or permit to be used the building or part thereof affected by any work, until,- (a) permission has been received from the Commissioner in this behalf, or (b) The Commissioner has failed for (thirty) days after receipt of the notice of

38 38 completion to intimate his refusal of the said permission. 22. The aforesaid provisions read with bye-law 5.6 in the matter of issue of occupancy certificate, it is needless to state is a condition precedent for every owner who erects a new building to obtain a completion certificate and occupancy certificate from the Commissioner. In the facts and circumstances of the case, it is admitted that respondents 4 and 5 though put up construction of the building in violation of rule of law have occupied the premises without following and in breach of Sections 115 and 310 of the KMC Act. 23. Section 436 provides for penalty for unlawful building Penalty for unlawful building.- (a) If the construction or reconstruction of any building or well,- (i) is commenced without the permission of the Commissioner, or (ii) is carried on or completed otherwise than in accordance with the particulars on which such permission was based, or

39 39 (iii) is carried on or completed in contravention of any lawful order or breach of any provision of this Act or any rule or bye-law made under it, or of any direction or requisition lawfully given or made, Thus respondents 4 and 5 are liable for criminal prosecution which the first respondent/commissioner ought to take note of and act in accordance with law. 24. Respondents 4 and 5 having failed to comply with their undertaking, have flouted the rule of law, disentitling them to equity. 25. One Lakshmikantha.S, said to be the Registered Engineer bearing No.BCC/BL- 3.6/E:3256:08-09 and with the address No.58, Kathriguppe village, B.S.K. III Stage, Bengaluru-85 claims to have certified the plot bearing No.8/1 on inspection and prepared the building plan for sanction as disclosed in the affidavit, Annexure-R7 in terms of schedule IV to the bye-laws and at paragraph 7, 8 and 9 undertook thus:

40 40 7. I also undertake to guide my client at all times regarding the building bye-laws and the need to adhere to the same. 8. I take full responsibility if the building plan prepared by me is against the provisions of Revised Comprehensive Development Plan/ Master Plan 1995 and the provisions of the Building Bye-laws of the Bangalore Mahanagara Palike. As stipulated under the bye-laws I am jointly responsible if building is constructed deviating from the sanctioned plan. I shall perform the duties and responsibilities as prescribed in the Schedule IV-VIII of Building Bye-laws If for any reason, the building is deviated from the sanctioned plan, I will undertake to notify in writing to the sanctioning authority of such deviation within 3 days of its occurrence. 26. Bye-law 3.6 of the bye-laws provides for registration of Architects/Engineers/Supervisors referred to in the bye-laws to be registered by the authorities as stipulated in schedule IV which also

41 41 provides for qualification for registration of technical personnel for preparation of schemes for building licence and supervision and procedure for registration, their duties and responsibilities. Clause IV 7.1 reads thus: IV-7.1.The validity of every registration so granted for the above categories by the Authority shall be for a period of five years and renewable thereafter for every five years unless the same is cancelled by the Authority. The application for renewal shall be made to the Authority one month before the date of expiry of the registration. If any owner / builder contravenes the provisions of these bye-laws and rules in force, the Authority shall inform the same to the registered Architect/Engineer/ Supervisor in the first instance, warn in the second instance and cancel the registration if the same is repeated for the third time. Clause IV-8 (g, h, i and j) reads thus: g) They shall report to the Authority of any work executed on site in contravention of provisions of the Karnataka Municipal

42 42 Corporations Act, 1976, the Karnataka Town and Country Planning Act, 1961, rules, byelaws and regulations and other orders made thereunder. They shall also report to the Authority of any work executed in contravention of the sanctioned plan in the course of construction. h) They shall regularly fill up the progress report form and shall not proceed with the next stage of work without getting the previous stage inspected and examined by the authorised corporation staff. They shall fully comply with the instructions issued after examination of the work. i) They shall not materially and structurally deviate from the sanctioned plan, without previous approval of the Authority. They shall explain to the owners about the risk involved in contravention of the provisions of the Act, rules, bye-laws, zoning regulations, standing orders and policy orders of the Corporation. j) They shall submit the completion certificate and the executed plan (in case of

43 43 deviations) immediately when the work is completed. They shall fully comply with the requirements of the Corporation in connection with the Completion Certificate within the stipulated time. 27. Regard being had to the aforesaid bye-laws, the duties and responsibilities of the engineer/ architect duly registered with the BBMP is a mandate in the matter of compliance of rule of law. The undertaking in the form of affidavit extended by the engineer/ architect is not an empty formality but with a purpose of ensuring construction of the building strictly in accordance with the bye-laws, the Karnataka Town and Country Planning Act and Rules framed therein as also regulations. Failure to adhere to said undertaking, it is needless to state must be viewed seriously and therefore any laxity in the matter of taking a serious view over such actions of registered engineers cannot but be deprecated. A Registered architect/engineer cannot be allowed to go scot free despite the undertaking in the

44 44 form of an affidavit, since there would be no sanctity attached to a sworn statement. 28. It is the general perception of people that whenever they apply for sanction of a building plan, the engineering department of the BBMP insists that the plan be certified by one of their registered architect/engineer/supervisor and in most cases, parties do not even know the engineer who affix his signature on the plan, a formality convenient to enable corruption. It is not known on how many building plans the said engineer has affixed his signature and how many such undertakings given and in how many buildings that engineer has violated the terms of undertaking. It is said that no action is initiated against this Engineer who guided respondents 4 and 5 in erecting the building in violation of building plan sanction. It is hoped that the first respondent/ Commissioner would forthwith ensure action against the said engineer, in accordance with law.

45 Having concluded that construction of the building by the 4 th and 5 th respondent is in violation of rule of law and that the BBMP engineers endorsed with statutory duties, failed to prevent the unauthorized deviation, hence the said engineers cannot be allowed to go scot free despite being paid monthly salary from out of the exchequer. Sadly it is to be noticed that the legislature of the State inserted in the KMC Act, Section 321-B during the year 2007 providing for penalty against jurisdictional officer failing to prevent unauthorized deviation or constructions, without however prescribing the punishment. In other words, the said section is a dead letter, since no punishment can be imposed on the engineers held guilty of preventing unauthorized deviation in constructions. Because of this lack of punishment, engineers are bold enough in not preventing the unauthorized construction and deviation. It is possible to assume that there must be some other considerations for such failure in discharge of statutory duties. In the instant case, it is

46 46 not as if four floors of building was constructed in a day but must have taken several months and all the while, the jurisdictional engineers though in and around the said place thought fit to initiate action only after petitioner s representation and order dated in WP No.4972/2012. Had one of them taken remedial action, this petition would have been unnecessary. Failure to initiate action at the earliest point of time has led to this litigation at the instance of the petitioner a neighbour of respondents 4 and 5, entitled to preserve and protect his rights. It is needless to state that it is for the Commissioner/ first respondent to take action on the disciplinary front against the erring engineers who fail to prevent unauthorized construction and ensure imposition of punishment commensurate with the allegations of misconduct that may be leveled against the engineers, keeping in mind the observations supra.

47 In the circumstances, the observations of the Apex Court in Dr.Balwant Singh vs. Commissioner of Police and others in Civil Appeal No.10024/2014 dated is apposite. 21. The law of nuisance is well settled. Nuisance in any form as recognized in the law of Torts whether private, public or common which results in affecting anyone s personal or/and property rights gives him a cause of action/ right to seek remedial measures in Court of law against those who caused such nuisance to him and further gives him a right to obtain necessary reliefs both in the form of preventing committing of nuisance and appropriate damages/compensation for the loss, if sustained by him, due to causing of such nuisance. (See Ratanlal Dhirajlal Law of Torts by G.P.Singh -26 th Edition pages- 621, 637, 640). 31. Viewed in this perspective, petitioner s neighbours, 4 th and 5 th respondents having impinged upon the rights of the petitioner and caused nuisance, by constructing a building in gross violation of rule of law, to the detriment of the petitioner, is entitled to

48 48 remedial measures both at the hands of BBMP as well this Court. The KMC Act provides for remedial measures which the authorities have failed to exert themselves, and therefore, there is a need to direct taking effective measures to remedy the illegality perpetuated by the 4 th and 5 th respondents. 32. Section 443 of the KMC Act provides for general provisions regarding licence, registration and permissions while sub Sections 3 and 4 invest jurisdiction in the first respondent Commissioner to suspend and revoke the licence or permission granted under the Act. In view of the unauthorized construction put up by the respondents 4 and 5, it is needless to state that it is for the first respondent/ Commissioner to exercise a jurisdiction vested in him under the aforesaid statutory provision. 33. Bengaluru city has a dubious distinction for illegal constructions. Thanks to the officers manning BBMP who have failed to discharge statutory duties

49 49 either because of incompetence or for various considerations. It is in this context, it is useful to extract the observations of the Apex Court in the following reported opinions. 34. In the light of the observations of the Apex Court in DIPAK KUMAR MUKHERJEE v. KOLKATA MUNICIPAL CORPORATION AND OTHERS 1, the petitioner being the immediate neighbour of the 4 th respondent and a rate payer, has a legal right to demand compliance by respondents 1 to 3 of their statutory duties. The Apex Court noticed its earlier decision in K. RAMADAS SHENOY v. CHIEF OFFICERS, TOWN MUNICIPAL COUNCIL 2 and observed thus: The Court enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The Scheme here is for the benefit of the 1 AIR 2013 SC AIR 1974 SC 2177