10 April 2023 8:46 AM GMT
The Karnataka High Court has advised the Bruhat Bengaluru Mahanagara Palike (BBMP) to be careful with complaints made by a party to a civil proceedings against its opponent, and initiate action only in accordance with law.A single judge bench of Justice Suraj Govindaraj allowed the petition filed by one Ramamurthy N and quashed the order passed by the corporation issued under Section 321 (3)...
The Karnataka High Court has advised the Bruhat Bengaluru Mahanagara Palike (BBMP) to be careful with complaints made by a party to a civil proceedings against its opponent, and initiate action only in accordance with law.
A single judge bench of Justice Suraj Govindaraj allowed the petition filed by one Ramamurthy N and quashed the order passed by the corporation issued under Section 321 (3) of the Municipal Corporation act against him on the complaint made by his brother.
The bench advised “The Corporation to be careful in these situations and take necessary action in accordance with law and not to be used as a tool by a private party to settle private scores.”
The BBMP, on a complaint filed by N.Radhakrishna, the brother of the petitioner, had issued a notice under Section 321(1) of the Act. It was said the petitioner has altered the premises without obtaining plan sanction. The petitioner had challenged the order before the Karnataka Appellate Tribunal (KAT), which came to be dismissed on 20.02.2016. Thus he had approached the High Court.
Ramamurthy contended that a portion of the land was acquired by the BBMP in pursuance of which Transferable Development Rights were issued. He was called upon to demolish the portion acquired and it is in furtherance of the same, demolition took place and after the demolition of a portion of the building in order to make the building habitable, necessary works have carried out especially putting up a rolling shutter, the same is not an alteration and or construction. Thus there was no requirement of obtaining a plan sanction as contended by the BBMP, he claimed.
Further it was said that BBMP issued notices only on the basis of the complaint filed by the brother of the petitioner while a partition suit is pending between them.
The Corporation defended its action saying Section 321(1) provides for action to be taken even as regards alteration of the building, the repair carried out by the petitioner amounts to alteration of the building, the installation of the rolling shutter also amounts to alteration of the building, no sanction having been taken in relation thereto, the action taken by the Corporation is proper which has been rightly appreciated by the KAT.
The bench referred to Section 320 of the Act which pertains to alterations and additions. It noted that the proviso to Section 320 provides that wherever works are carried out for repair which do not affect the position or dimensions of a building or hut or any room in a building therein it shall not be deemed an alteration or addition for the purpose of said section.
Then it said “When proviso to Section 320 is taken into account, a mere repair work which does not affect the position or dimension of the building cannot be said to be an alteration.”
Noting that what has been carried out by the petitioner is demolition of a portion of the building on account of widening of the road and thereafter repair works of the demolished portion to make it usable, the Court held,
“In my considered opinion, the demolition work which was carried out for the purpose of making the building habitable and usable cannot be said to be an alteration which would come within the purview of Section 321 of the Act, but would come under the proviso to Section 320 of the Act.”
It added “The Corporation could not have exercised powers under Section 321 of the Act, more so, on the basis of a complaint filed by the brother of the petitioner with whom there are certain disputes pending.”
The bench opined “The said complaint is only to put the State machinery in action to resolve the dispute between the petitioner and respondent No.4.”
Case Title: Ramamurthy N And Bruhat Bengaluru Mahanagara Palike & Others
Case No: WRIT PETITION NO. 22305 OF 2016
Citation: 2023 LiveLaw (Kar) 144
Date of Order: 24-03-2023
Appearance: Advocate T Prakash for petitioner.
Advocate Saritha Kulkarni for R1 To R3.
Advocate N K Kantharaj for R4.
HCGP Santosh Kumar for R5.
Click Here To Read/Download Order