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M.C. NALINAKSHI V/S THE SECRETARY, URBAN DEVELOPMENT DEPARTMENT, BANGALORE & OTHERS, decided on Tuesday, April 25, 2017.
[ In the High Court of Karnataka, Writ Petition No. 16072 of 2017 (LB-UC). ] 25/04/2017
Judge(s) : RAGHVENDRA S. CHAUHAN
Advocate(s) : K.R. Ramesh. R1, A.K. Vasanth, Additional Government .
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  "2017 (5) KantLJ 91"  ==   ""  







    Raghvendra S. Chauhan J.1. The petitioner has challenged the legality of the order dated 1-4-2017 passed by the VI Additional District and Sessions Judge Tumakuru in M.A. No. 22 of 2016 whereby the learned Judge has dismissed the appeal filed by the petitioner under Section 443-A of the Karnataka Municipal Corporations Act 1976 (the Act for short).2. Briefly the facts of the case are that the petitioner claims to be the owner of the property bearing Municipal Katha No. 1058/813/1118 (Old Municipal Katha No. 3068) P.I.D. No. 88359 situated at Ward No. 22 Someswarapuram Extension Tumkur. According to the petitioner she acquired the property from her husband under a registered gift deed dated 5-2-2014 followed by a rectification deed dated 10-2-2014. Pursuant to the gift deed dated 5-2-2014 the Katha of the scheduled property had also been transferred in the petitioner's name. Subsequently in order to construct a house she had applied for a sanctioned plan. According to the sanctioned plan she was permitted to construct the Ground floor the First floor and the Second floor. While the construction was in progress the petitioner's neighbour namely Smt. Nagamma filed a complaint before the Commissioner Tumkur City Corporation respondent 2 wherein she alleged that the construction carried out by the petitioner is in violation of the sanctioned plan. Further the setback required to be left has not been left by the petitioner.3. On the basis of the said complaint by order dated 30-5-2014 the respondent 2 cancelled the licence issued in favour of the petitioner for putting up the construction over the schedule property. Since the petitioner was aggrieved by the order dated 30-5-2014 the petitioner filed a writ petition namely W.P. No. 2892 of 2014 before this Court. However this Court directed the petitioner to file a revision petition before the Government and disposed of the writ petition. Therefore the petitioner filed a revision petition before the Secretary Urban Development Department Bengaluru. By order dated 30-5-2014 the respondent 1 remanded the matter to the respondent 2 for reconsideration of the matter afresh.4. Consequently the petitioner appeared before the respondent 2 and submitted evidence in her favour. However by order dated 19-2-2015 the respondent 2 again confirmed the order dated 30-5-2014.5. Since the petitioner was aggrieved by the order dated 19-2-2015 she filed a second writ petition before this Court namely W.P. No. 9801 of 2015. By order dated 7-12-2015 this Court quashed the order dated 19-2-2015. And therefore the petitioner continued with the construction.6. Since Smt. Nagamma was aggrieved by the continuation of construction she filed a writ petition before this Court namely W.P. No. 5494 of 2016 wherein she prayed that the respondent should be directed to take action against the petitioner as the construction being raised by the petitioner was an illegal one. By order dated 5-2-2016 this Court directed the respondent 2 to visit the place of construction and if the construction is in violation of the sanctioned plan to stop further construction and to submit a report before this Court. Consequently the respondent 2 visited the scheduled property and submitted his report before this Court. According to the report there was a slight deviation from the sanctioned plan. According to the said report there was a deviation to the extent of 4.4% that too regarding leaving of the setback.7. During the pendency of the writ petition the petitioner was impleaded as a party-respondent. This Court was pleased to observe that as noticed above this Court in W.P. No. 9081 of 2015 has directed the first respondent to initiate action under Section 321 of the Act against the second respondent if there is any illegal construction. Whether construction of the building is according to the sanctioned plan or not has to be decided by the first respondent. I am sure that the first respondent will take suitable action in terms of the order of this Court in W.P. No. 9801 of 2015 dated 7-12-2015 within a period of three months from the date of receipt of copy of this order. All contentions on merit are kept open.8. Since the petitioner was aggrieved by the order dated 13-4-2016 she filed a third writ petition before this Court namely W.P. No. 25597 of 2016. Meanwhile the petitioner also challenged the same order before the VI Additional District Judge Tumkur in M.A. No. 22 of 2016. However by order dated 1-4-2017 the learned Judge has dismissed the appeal. Hence this petition before this Court.9. Mr. Ramesh K.R. the learned Counsel for petitioner has raised two contentions before this Court namely Section 321-A deals with unlawful buildings. However the construction being raised by the petitioner does not relate to an unlawful building as the sanctioned plan was duly approved by the concerned authority. Therefore Section 321-A of the Act is not applicable to the case of the petitioner. Secondly Bye-law No. 6.0 of the Bangalore Mahanagara Palike Building Bye-laws 2003 (Bye-laws 2003 for short) clearly empower the Commissioner to regularise any deviation up to maximum limit of 5% especially with regard to the setback to be provided around the building. Since according to the report submitted by the respondent 2 the petitioner had merely deviated to the extent of 4.4% the Commissioner ought to have exercised his power under Bye-law No. 6.0 of the Bye-laws 2003. Therefore the impugned order deserves to be interfered with by this Court.10. Heard the learned Counsel for petitioner and perused the impugned order.11. Section 321-A of the Act is as under :321-A. Regularisation of certain unlawful buildings. - (1) Notwithstanding anything contained in this Act when construction of any building is completed in contravention of the Sections 300 and 321 and building bye-laws made under Section 423 the Commissioner may regularise building constructed prior to the date of commencement of the Karnataka Town and Country Planning and Certain Other Laws (Amendment) Act 2004 subject to the following restrictions and such rules as may be prescribed and on payment of the amount specified in sub-section (2) namely. -(a) Where the building is built abutting the neighbouring property or where the set back provided is less than the limit prescribed in bye-laws violation up to twenty-five per cent in case of non-residential buildings and fifty per cent in case of residential buildings shall be regularised;(b) No development made in the basement or usage in contravention of bye-law shall be regularised;(c) The construction of building shall not be regularised if it violates the building line specified on any given road unless the owners of such building furnish an undertaking that the space between the building line and the road or footpath or margin will be given up free of cost at any time when required for the purpose of widening the road in question;(d) The provisions of sub-sections (2) to (14) of Section 76-FF of the Karnataka Town and Country Planning Act 1961 shall apply mutatis mutandis for regularisation of building under this section and application for regularisation being made to the Commissioner.(2) Regularisation of any construction under this section shall be subject to payment of the prescribed amount which may be different for different types of contravention of building bye-laws:Provided that the amount so prescribed shall not be less than.-(i) six per cent of the market value determined in accordance with the Karnataka Stamp Act 1957 and rules made thereunder of the portion of the building built in violation of the provisions referred to above if such violation of set back norms and permissible floor area ratio does not exceed twenty-five per cent;(ii) eight per cent of the market value determined in accordance with the Karnataka Stamp Act 1957 and the rules made thereunder of the portion of the building built in violation of the provisions referred to above if such violation of set back norms and permissible floor area ratio exceeds twenty-five per cent but does not exceed fifty per cent:Provided further that where the portion of the building is built in violation of the provisions referred to above is being used or meant for non-residential purpose and amount payable for regularisation of such portion shall be. -(a) twenty per cent of the market value determined in accordance with the Karnataka Stamp Act 1957 and the rules made thereunder of the portion of the building built in violation of the provisions referred to above if such violation of set back norms and permissible floor area ratio does not exceed twelve and a half per cent;(b) thirty-five per cent of the market value determined in accordance with the Karnataka Stamp Act 1957 and the rules made thereunder of the portion of the building built in violation of the provisions referred to above if such violation of set back norms and permissible floor area ratio exceeds twelve and a half per cent but does not exceed twenty-five per cent.(3) No person shall be liable to pay fine or fee for regularisation under any other law if he has paid regularisation fee under this Act for the same violations.(4) All payments made under sub-section (1) shall be credited to a separate fund kept in the concerned Local/Planning Authority called the urban areas infrastructure Development fund which shall be utilised in such manner for the development of infrastructure civic amenities lighting parks drinking water drainage system and for any other infrastructure as may be prescribed.12. The words unlawful building used in the title of the section does not mean the construction of a building without any sanctioned plan. A care perusal of the provision would clearly reveal that unlawful buildings are those which have been constructed in contravention of Section 321 of the Act and in contravention of the Building Bye-laws. Therefore Section 321 does include within its scope and ambit a building which may be constructed after receiving an approved sanctioned plan. However what is material for Section 321-A of the Act is that having received the approved sanctioned plan the construction is in violation of the sanctioned plan. Therefore the first contention being raised by the learned Counsel that Section 321-A of the Act is applicable to only those buildings which are being constructed without the sanctioned plan is clearly unacceptable.13. A bare perusal of Section 321 of the Act further reveals that Section 321 has been inserted on 6-2-2007 into the Act in order to empower the Commissioner to regularise the illegal constructions which arose prior to 2013. However the power to regularise the illegal construction would not be applicable to any construction raised after 2013. Thus Section 321 is applicable only to those constructions which are pre-2013 period but not post 2013 period. Thus the benefits of Section 321-A is applicable to a limited constructions i.e. which were raised prior to 2013. Admittedly the petitioner raised her construction in 2014. Therefore the benefit of Section 321-A of the Act is not available to her.14. Although the learned Counsel has pleaded that the Commissioner has ample power under Bye-law 6.0 of the Bye-laws 2003 to compound the illegal constructions but even the said contention is unacceptable. Firstly Bye-laws have been promulgated under Section 423 of the Act. Therefore it is a part of subordinate legislation. Moreover Section 321-A of the Act is categorical when it clearly prescribes any building as completed in contravention of the Building Bye-laws made under Section 321 of the Act. Thus these words clearly refer to the Building Bye-laws 2003. Therefore the power bestowed by Bye-law 6.0 would have to be exercised in terms of the ambit and scope of Section 321-A of the Act. Secondly Bye-law 6.0 cannot be read so as to operate beyond the scope and ambit of Section 321 of the Act. After all Bye-laws cannot override the provisions of the parental Act. Therefore any power vested by Bye-law 6.0 would have to be necessarily exercised within the ambit and scope of Section 321-A of the Act. Since Section 321-A of the Act empowers the Commissioner to regularise those constructions which were prior to 2013 obviously the power vested by Bye-law 6.0 would be applicable only to those constructions which were raised prior to 2013. Therefore even the benefit of Bye-law 6.0 of the Bye-laws 2003 cannot be extended to the petitioner. For admittedly petitioner's construction began in the year 2014. Therefore the learned Judge was justified in concluding that since petitioner's construction began in 2014 the benefit of Section 321-A of the Act is not available to the petitioner.15. Therefore respondent 2 was justified in denying the benefit of Section 321-A of the Act to the petitioner and in issuing the notice to the petitioner to get rid off the illegal construction raised by the petitioner and to bring the construction absolutely in conformity with the sanctioned plan.16. Since the learned Judge has given cogent and convincing reasons for dismissing the appeal filed by the petitioner this Court does not find any illegality or perversity in the impugned order. Thus this petition being devoid of merits is hereby dismissed.