Judgment:
(Prayer: This I.A.No.II of 2016 is filed under Section 151 of Code of Civil Procedure, read with Articles 14, 19 and 21 of the Constitution of India praying to order a Court enquiry into the matter urgently to bring out the illegal action of the Assistant Executive Engineer Mr.Munireddy and other erring guilty officers of the Respondent - BBMP, in the interest of Justice and Equity.)
P.S. Dinesh Kumar, J.
ORDER ON I.A.NO.II OF 2016
1. This interlocutory application No.2 of 2016 is filed by the Writ Petitioner, Appellant, under Section 151 of the Code of Civil Procedure, inter alia, praying for a direction against the Bruhat Bengaluru Mahanagara Palike ('BBMP' for short) to restore applicant's dwelling house, allegedly demolished by the BBMP, or in the alternative to pay the cost of restoration.
2. Heard Shrimati. Kavita Podwal, applicant/party- in-person and Shri D.N. Nanjunda Reddy, learned Senior advocate with Shri V. Sreenidhi, learned advocate for the respondent Nos.1 to 5 - BBMP and it's officials and Shri T.N.Raghupathy, learned advocate for the respondent No.6.
3. Brief facts of the case are, applicant-writ petitioner claims to be the owner in possession of a dwelling house constructed on a site measuring 40' x 40' bearing Khatha Nos.471/2C and 476/1B in Ward No.85 of BBMP, Doddanekkundhi, Bengaluru - 560 037. A provisional order in the form of a show cause notice dated November 18, 2013, under Section 321(1) and (2) of the Karnataka Municipal Corporations Act, 1976 ('Act' for short) was issued by the respondent - BBMP alleging illegal construction by the applicant. It was followed by a final order dated November 29, 2013, under Section 321(3) of the Act, confirming the provisional order. Applicant challenged the said orders in writ petition No.3147 of 2016. By then, the respondent No.6, had, also, filed W.P.No.18596 of 2015 seeking a direction to the BBMP to give effect to the confirmation order. Both writ petitions were heard together by the Hon'ble Single Judge and decided on April 7, 2016.
4. With regard to applicant's prayers, it was held by the Hon'ble Single Judge that, there was an alternative remedy by way of an appeal before the Karnataka Appellate Tribunal. So far as sixth respondent's prayers were concerned, the BBMP was directed to conclude the proceedings under Section 462 of the Act expeditiously.
5. Applicant, challenged the common order passed by the Hon'ble Single Judge in these writ appeals. On April 25, 2016, this Court, stayed the demolition for a period of eight weeks.
6. Subsequently, these writ appeals were decided by Judgment and Order dated April 28, 2016. Applicant, challenging the same before the Supreme Court of India, among other grounds also contended that, the instant I.A.No.2 of 2016 had remained un-adjudicated by this Court. By order dated November 18, 2016, the Supreme Court of India held that IA No.2 of 2016, be disposed of on merits.
7. Srimati Kavita Podwal, party-in-person, vehemently argued that, though a Division Bench of this Court, on April 25, 2016, had stayed the demolition of the building, in flagrant violation of law, particularly, Section 462 of the Act, the respondent - BBMP commenced demolition on the very same day and damaged a substantial portion of her dwelling house. Accordingly, she prayed for granting the prayers made in the instant application.
8. Opposing the application, Shri D.N.Nanjunda Reddy, learned senior advocate, at the outset, submitted that, the instant application was not on board for consideration when the appeals were heard for final disposal.
9. With regard to demolition, he submitted that, the provisional order was confirmed as the applicant had failed to submit her reply. Further, the applicant had an alternative remedy by way of appeal as rightly held by the Hon'ble Single Judge. After disposal of the writ petition, the applicant did not choose the alternative remedy and, therefore, the BBMP took further action to demolish the building. No sooner did the applicant produce the interim order, the demolition was stopped. Hence there is no error or illegality committed by the BBMP.
10. He, further, contended that this Court, while deciding the writ appeals, has directed the Commissioner, BBMP, to consider the representation of the applicant. Hence, the applicant may seek redressal of her grievances including the prayers contained in the instant application before the Commissioner.
11. Shri T.N.Raghupathy, learned advocate for the respondent No.6, submitted that, the applicant having built an illegal construction is not entitled for any relief.
12. We have given our careful consideration to the submissions of the learned Counsel for the parties and perused the records.
13. Finite, but incontrovertible facts of this case are, the applicant had built the dwelling house in question. The sixth respondent obtained a decree for declaration and possession of the property in question, in O.S.No.26414 of 2013, filed against the applicant. Applicant challenged the same before this Court, in Regular First Appeal No.372 of 2015, wherein, the sixth respondent has been restrained from taking possession of the property.
14. So far as adjudication of this I.A. No.2 is concerned, Shri. Nanjunda Reddy is right in his submission that the instant application was not on board, when the appeals were taken up for final disposal. We have perused a copy of the cause list of the said date, and it is clear that this application was not listed on that day. Be that as it may, in pursuance of the directions of the Supreme Court of India, we have now considered the application on merits.
15. The BBMP, claims to have issued a provisional order on November 18, 2013. The translated version of the said notice reads as follows:-
"Sri. Sagir Ahmed No.3/1A, Mosque road, Frazer Town, Bengaluru-5, has given a complaint dated 21.10.2013 alleging that Smt. Kavitha, Karthiknagar, has been putting up unauthorized construction as Sy.No.88, Doddanakundi, Bengaluru-37. As per the said complaint, our Asst. Executive Engineer has issued notice on 22.10.2013 directing you to submit approved plan and documents as per section 308 of Karnataka Municipal Corporation Act, 1976".
(Emphasis supplied)
16. A careful perusal of the above, shows that, the said order was issued at the instance of the sixth respondent. We are constrained to note that the provisional order declaring that the applicant had put up an unauthorised construction is bald and does not even contain the schedule of the property or the boundaries. No reasons, much less cogent ones are assigned for issuance of said order. The confirmation order, which followed the provisional order, also, does not disclose the consideration of facts of the case by the authority and, therefore, we have no hesitation to hold that both orders have been passed in a casual and mechanical manner.
17. The Hon'ble Single Judge, in the order impugned in these writ appeals, has, directed the respondent - BBMP, to conclude the proceedings under Section 462 expeditiously. Section 462 deals with time for complying with an order passed and the power of BBMP, to enforce it's orders and it reads as follows:-
462. XXXXXXXXXX
"(1) Whenever by any notice, requisition or order made under this Act or under any rule, bye-law or regulation made under it, any person is required to execute any work, or to take any measures or do anything, a reasonable time shall be named in such notice, requisition or order within which the work shall be executed, the measures taken, or the thing done".
(Emphasis supplied)
18. The respondent - BBMP, has not placed any material to show that, proceedings under Section 462 were initiated nor any 'reasonable time' given to the applicant. It is, also, significant to note that, no time limit is prescribed either in the provisional or final order, although, it has been the case of the applicant that both orders were never served upon her.
19. It was, also, contented by the applicant that, in furtherance of order dated April 28, 2016, passed in these writ appeals, she had submitted a representation on May 2, 2016 to the BBMP, but the same has not been considered even on date. A copy of the representation, produced before us, contains a seal acknowledging it's receipt by the Personal Secretariat of the Commissioner. We were shocked to note the response of the BBMP on this aspect, that since the said representation was handed over to the Private Secretary to the Commissioner, the same may have missed the attention of the Commissioner. This stand of the BBMP, is far too imperious to be countenanced. Obviously, a citizen, can deliver the papers only with the secretariat. Nearly fourteen months have elapsed since the disposal of the writ appeal and submission of representation by the applicant. Unfortunately, in a case of this nature, wherein, a citizen, has approached this Court with far-reaching allegations of demolition of her dwelling house, and, this Court has called upon the Commissioner, BBMP, to consider the representation of the applicant, the respondent authority has despicably cold shouldered the issue, in this casual and lackadaisical manner and in flagrant disobedience of orders of this Court.
20. The first and the second prayers in the instant application, are for directions to re-build applicant's demolished premise or in the alternative to reimburse the cost of repairs, respectively. Consideration of these prayers, require factual assessment of alleged damage. The third prayer, is for a direction to make available the mahazar and copies of the note sheets etc., and the same is reasonable and deserves to be granted.
21. Before we proceed to pass orders on this application, we are constrained to observe that, in our view, this is a classic case of misguided and authoritarian misadventure undertaken by the respondent authority. Time has come to convey certain clear guidelines. Accordingly, we issue following general directions to the BBMP:
i) In a notice / provisional order, the name and address of the owner/khatedar shall be clearly mentioned;
ii) The identity of the property and the boundaries shall be delineated in an unambiguous manner;
iii) BBMP shall record specific findings with regard to alleged deviations;
iv) All notices and orders shall be served strictly in accordance with law;
v) Reasonable time shall be specified in provisional order and granted to the property owner to file his reply;
vi) Before, confirming a provisional order, the officer concerned shall record his satisfaction that the provisional order was served to the owner/khatedar;
vii) Reasons for confirming the provisional order shall be clearly recorded by the officer concerned;
viii) Reasonable time for compliance shall be clearly mentioned in the final order;
ix) No demolition shall be undertaken without recourse to Section 462 of the Act; and
x) These directions shall be strictly complied with.
22. In the premise,
(i) I.A.No.II of 2016 is allowed with costs;
(ii) The Commissioner, BBMP, shall comply with the order dated April 28, 2016, post-haste, by taking applicant's representation dated May 2, 2016, on record and dispose of the same expeditiously and in any event within eight weeks from the date of receipt of a copy of this order;
(iii) The applicant and the sixth respondent shall appear before the Commissioner, BBMP on August 7, 2017 and collect further dates of hearing, if any;
(iv) The Commissioner, BBMP, shall make available certified copies of the mahazar drawn at the spot before commencing demolition, CD containing the video coverage, if any, to the applicant, after collecting applicable fee, in accordance with law;
(v) After hearing the parties, if the Commissioner, BBMP, comes to the conclusion that the demolition of applicant's dwelling house was illegal, he shall quantify the damages and pay the same within two weeks from the date of his order; and
(vi) Cost payable by the respondent-BBMP to the applicant is quantified at Rs. 25,000/- (Rupees twenty five thousand only).