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2017 DIGILAW 335 (KAR)

B. v. HEMARAJU S/O LATE D. VENKATANARASAPPA VS COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE N. R. SQUARE

2017-02-06

R.S.CHAUHAN

body2017
ORDER : The petitioners have challenged the legality of the Provisional Notice dated 30.05.2015, the Confirmation Order dated 02.07.2015, passed by the Bruhat Bengaluru Mahanagara Palike (‘BBMP’ for short), and the order dated 29.07.2016 passed by the Karnataka Appellate Tribunal (‘Tribunal’ for short), whereby the learned Tribunal has dismissed the appeal filed by the petitioners, and has confirmed the first two notice and order respectively. 2. Briefly the facts of the case are that, one Mr. D.Venkatanarasappa, the father of the petitioners, had purchased a property bearing No.12, 2nd Main Road, Block No.5, Kumara Park West, Bengaluru, through a registered Sale Deed executed on 10.09.1965. After the demise of their father, the petitioners inherited the said property. The petitioners wanted to construct a residential house on the said property. Therefore, they applied for a building plan to be sanctioned by the BBMP. After receiving the sanctioned plan, the petitioners started construction of their house. However, the petitioners were shocked to receive a Provisional Notice dated 30.05.2015, sent by the BBMP, under Section 321 (1) and (2) of the Karnataka Municipal Corporation Act, 1976 (‘KMC Act’ for short). Immediately, the petitioners replied to the same. However, notwithstanding their reply, on 02.07.2015, the BBMP issued the Confirmation Order, under Section 321(3) of the KMC Act. 3. Since the petitioners were aggrieved by the Provisional Notice dated 30.05.2015, and the Confirmation Order dated 02.07.2015, they filed an appeal before the learned Tribunal. However, by order dated 29.07.2016, the learned Tribunal has dismissed the appeal. Hence, these petitions before this Court. 4. Mr. N. Ramachandra, learned counsel for the petitioners, has raised the following contentions before this Court: Firstly, the petitioners had immediately replied to the Provisional Notice dated 30.05.2015. However, while passing the Confirmation order dated 02.07.2015, the respondents have not dealt with the reply submitted by the petitioners. Merely, in one line, they have said that “they are not satisfied with the reply submitted by the petitioners”. Therefore, the Provisional Notice and the Confirmation Order deserve to be set aside. Secondly, the learned Tribunal has not given any cogent reason for dismissing the appeal, except noticing the fact that according to the BBMP, there was deviation in the setback, and the photographs reveal that no space was left in the setback. Therefore, the impugned order suffers from being a non-speaking order. Thus, it deserves to be set aside this Court. 5. Therefore, the impugned order suffers from being a non-speaking order. Thus, it deserves to be set aside this Court. 5. Heard the learned counsel for the petitioners, and perused the impugned Notice dated 30.05.2015, the Confirmation Order dated 02.07.2015, and the impugned order dated 29.07.2016. 6. A bare perusal of the Provisional Notice dated 30.05.2015 reveals that in the said notice, the BBMP had clearly pointed out that there was a deviation from the approved plan in the ground, the first and the second floors to the extent of 21.05%, and in the setback, the deviation was as much as 56.66% and as little as 40%. Therefore, by the Provisional Notice, the petitioners were asked to give their explanation within a period of seven days. 7. In response to the said notice, on 05.06.2015, the petitioners submitted their reply. A bare perusal of the reply clearly reveals that the petitioners have taken only two grounds: firstly, they have denied any deviation and have claimed that the construction is in accordance with the sanctioned plan. But the denial has not been made specifically. It is only in vague terms. Secondly, the petitioners have pleaded that they had borrowed a large sum from the Bank. Therefore, any damage to the property caused due to demolition would ruin them completely. 8. Since the denial of deviation was a general one, the respondent was justified in concluding that the reply was an unsatisfactory one. After all, the petitioners had not repelled the claim of the respondent that there was a deviation on the ground, the first and the second floors to the extent of 21.05%, and in the setback to the large extent of 56.66%. Therefore, the impugned Confirmation Order dated 02.07.2015 was validly passed. 9. Although the learned counsel for the petitioners has contended that the learned Tribunal has passed a non-speaking order, but a bare perusal of the impugned order dated 29.07.2016 clearly reveals that the learned Tribunal had noticed the fact that there was deviation of the ground, the first and the second floors to the extent of 21.05%. Moreover, the photographs presented before the Tribunal clearly revealed that no setback was left by the petitioners. The petitioners did not lead any evidence to rebut the claim made by the respondent before the Tribunal. Thus, the Tribunal has given cogent reasons for dismissing the appeal filed by the petitioners. Moreover, the photographs presented before the Tribunal clearly revealed that no setback was left by the petitioners. The petitioners did not lead any evidence to rebut the claim made by the respondent before the Tribunal. Thus, the Tribunal has given cogent reasons for dismissing the appeal filed by the petitioners. The reasons given by the learned Tribunal cannot be faulted by this Court. 10. For the reasons stated above, this Court does not find any merit in the writ petitions. They are, hereby, dismissed.