- 1 - NC: 2025:KHC:4105 WP No. 19293 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE N S SANJAY GOWDA WRIT PETITION NO. 19293 OF 2024 (LB-BMP) BETWEEN: 1. ROOPA KIRAN., W/O LATE A.K.SHASHIKIRAN, AGE ABOUT 54 YEARS, #65, AMAR JYOTHI LAYOUT, 60FT ROAD, RMV 2ND STAGE, SANJAYNAGAR, BANGALORE-560094. 2. VEENA KUMARI, W/O SAIKAT BISWAS, AGED ABOUT 43 YEARS, 3. SAIKAT BISWAS, S/O SANJIB KUMAR BISWAS, AGED ABOUT 42 YEARS, PETITIONER No.2 & 3 R/AT No.117 S-3, ROHINI NIVAS, 6TH MAIN, 1ST CROSS, POSTAL COLONY, SANJANYNAGAR, BANGALORE -94. 4. MAHESH.D.PATIL., S/O DR.D.V.PATIL, AGED ABOUT 52 EARS, R/AT No.117, N-3, ROHINI NIVAS, 6TH MAIN, 1ST CROSS., POSTAL COLONY, SANJAYNAGAR, Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:4105 WP No. 19293 of 2024 BANGALORE-94. …PETITIONERS (BY SRI. SRINIVAS V,ADVOCATE) AND: 1. THE COMMISSIONER, BRUHATH BENGALURU MAHANAGARA PALIKE, N.R.SQUARE, BANGALORE-02. 2. THE ASST. EXECUTIVE ENGINEER, HEBBAL SUB-DIVISION, MUNIREDDY PALYA, BENGALURU-560 106. 3. THE ASSISTANT ENGINEER, WARD No.19, OFFICE OF THE THE ASST. EXECUTIVE ENGINEER, HEBBAL SUB-DIVISION, MUNIREDDY PALYA, BENGALURU-560106. 4. L.M.SARVAMANGALA, D/O LATE L.MAHADEVAIAH, AGED ABOUT 62 YEARS, R/AT No./118, JANAHAVI CLUSTERS F-2, 6TH MAIN, P AND T COLONY, SANJAY NAGAR, BANGALORE-560 094. …RESPONDENTS (BYSRI.B.S.KARTHIKEYAN., ADVOCATE FOR R-1 TO R-3; SMT. L.M.SARVAMANGALA., R-4 PARTY-IN-PERSON) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 18.05.2024 PASSED BY THE R-1 (TH CHIEF COMMISSIONER, BBMP) IN APPEAL No.73/24 AND APP No.74/2024 VIDE ANNEXURE-J AND J1 AND CONSEQUENTLY ALLOW THE APPEAL FILED BY THE PETITIONERS, ETC. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 22.01.2025, COMING ON FOR - 3 - NC: 2025:KHC:4105 WP No. 19293 of 2024 PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: THE HON'BLE MR JUSTICE N S SANJAY GOWDA CAV ORDER 1. The petitioners are the purchasers of apartments in respect of which the Bruhat Bengaluru Mahanagara Palike ('the BBMP') had sanctioned a plan in the year 2004 vide L.P.No.764/2003-04. 2. It is their case that this apartment complex was assessed to tax, and they were also paying taxes. It is their further case that in the year 2018, the 4th respondent herein instituted a suit in O.S.No.16742/2004 seeking for an injunction to restrain the 1st defendant therein, who had obtained the sanctioned plan from putting up any permanent structure in violation of the Karnataka Municipal Corporations Act, 1976 (the “KMC Act”) to the Western side of her apartment which affected the 4th respondent’s free flow of air and light. - 4 - NC: 2025:KHC:4105 WP No. 19293 of 2024 3. The 4th respondent had also sought a mandatory injunction to the BBMP, who had been arraigned as the 2nd defendant therein, to demolish that portion of the construction, which had deviated from the sanctioned plan. It is their case that the said suit after contest was dismissed by the judgment decree dated 10.04.2018 (Annexure – F). 4. The dismissal of the suit was challenged by the 4th respondent by preferring an appeal before this Court in RFA No.1236/2018 (Annexure – G). This Court by an order dated 04.12.2023 disposed of the appeal without expressing any opinion on the merits or demerits of the rival contentions and modified the judgment decree passed by the Trial Court and directed the BBMP to take appropriate action in respect of the alleged unauthorized construction without being influenced by the findings and observations made by the Trial Court. The 4th respondent was also permitted to file a afresh - 5 - NC: 2025:KHC:4105 WP No. 19293 of 2024 representation within a period of three weeks and the BBMP was directed to notify the defendants therein and also any transferee and proceeded further in accordance with law. 5. The petitioners contend that, pursuant to the said order, the BBMP proceeded to issue a provisional order alleging that there was deviation regarding setbacks in the range of 20% to 36% and to an extent of deviation of 32% in respect of coverage. This provisional order was followed with a confirmatory order and the said order of confirmation was challenged by preferring an appeal and the appellate authority proceeded to dismiss the appeal and upheld the order of confirmation. The petitioners are therefore before this Court challenging the said order. 6. Learned counsel for the petitioners contended that the impugned orders do not indicate consideration of any objections raised by the petitioners and it is - 6 - NC: 2025:KHC:4105 WP No. 19293 of 2024 argued that the confirmatory order was passed by an Authority was not competent to do so. 7. It is also argued that, in the alternative, since the construction was prior to the cut off date indicated in the amendment to the KMC Act, which permitted regularization of buildings which had been deviated from the sanctioned plan, the petitioners were in fact entitled to seek for regularization. 8. Learned counsel also submitted that though the matter was before the Supreme Court regarding the validity of the provisions regularizing unauthorized structures, if the Apex Court upholds the right of the State to regularize the construction, the petitioners would have the right to seek for regularization. 9. Learned counsel appearing for the petitioner in fact has filed a memo stating that the petitioners would also invoke this right that they had to seek for regularization if it was available to them in law. He submits that in the event the Supreme Court comes - 7 - NC: 2025:KHC:4105 WP No. 19293 of 2024 to the conclusion that the law permitting regularization was valid, the petitioners’ structure could be regularized since they fall within the permissible limits and, therefore, this right should be safeguarded. 10. The learned counsel for the petitioners submitted that the impugned proceedings would be illegal since the BBMP had initiated proceedings under Section 321(1) of the KMC Act in the year 2004 and after the said proceedings were concluded, they had also demolished that portion of the constructions which were in violation of the sanctioned plan and, therefore, it was impermissible for the BBMP to contend that there was another set of violations. 11. The 4th respondent, who appeared in person, contended that the deviation from the sanctioned plan had been clearly established and, therefore, the Appellate Authority was justified in dismissing the appeal and upholding the order of confirmation. - 8 - NC: 2025:KHC:4105 WP No. 19293 of 2024 12. She also placed reliance on the decision rendered by the Apex Court in Rajendra Kumar Barjatya’s Case1 to contend that the Supreme Court has clearly declared that the unauthorized constructions cannot be regularized, and they are required to be demolished. 13. At the outset, it is to be stated here that there is no quarrel with the proposition laid down by the Apex Court that an unauthorized construction cannot be permitted to stand and the Authorities as well as this Court is bound to ensure that the rule of law is obeyed by all concerned. 14. However, at the very same time, it should also be noticed that, in the judgment relied upon by the 4th respondent, the Supreme Court was not considering a situation which dealt with a statutory provision which permitted a person to seek for regularization 1 Rajendra Kumar Barjatya And Another Vs. U.P.Avas Evam Vikas Parishad & Ors. – 2024 SCC Online SC 3767 - 9 - NC: 2025:KHC:4105 WP No. 19293 of 2024 of his unauthorized construction. If a person has acquired a statutory right to seek for regularization of unauthorized occupation, unless that provision is struck down, that right of the person cannot be deprived. 15. The argument of the learned counsel that there was an earlier proceeding under Section 321(1) of the KMC Act, which had culminated in the BDA demolishing the construction which had in contrary to the sanctioned plan is recorded by the Trial Court in its judgment at paragraph No.29. It is therefore clear that the Authorities would have to consider as to whether there was any fresh construction put up which had violated the sanctioned plan. 16. The impugned provisional order as well as the confirmatory order are silent about this aspect of the matter. Since the BBMP was also a party to the judgment and decree passed in O.S.No.16742/2004, it was incumbent upon them to record a finding as to - 10 - NC: 2025:KHC:4105 WP No. 19293 of 2024 whether notwithstanding the demolition that they had undertaken in the year 2004 there was a fresh round of deviation. 17. The argument of the learned counsel for the petitioners would therefore have to be accepted to this extent. 18. This aspect of the matter was also not been considered by the Appellate Authority and the Appellate Authority has merely gone by the provisional order, which stated that there was a deviation. 19. I am therefore of the view that the order of the Appellate Authority as well as the order of confirmation cannot be sustained and the matter would therefore have to be remanded to the jurisdictional authority and with a direction to the Authority to determine as to whether the violations indicated in the provisional order were subsequent to the demolitions made earlier in the year 2004 and - 11 - NC: 2025:KHC:4105 WP No. 19293 of 2024 thereafter provide the petitioners an opportunity of filing objections to the same and then pass appropriate orders. 20. In addition to the above, during pendency of the proceedings pursuant to this order, if the Apex Court were to uphold the legality of the provisions relating to regularization of unauthorized construction, the petitioners would be entitled to seek for regularization in accordance with law and until that exercise is completed no steps for demolishing shall be taken by the 2nd respondent. 21. This writ petition is accordingly allowed. Sd/- (N S SANJAY GOWDA) JUDGE GSR List No.: 1 Sl No.: 85