- 1 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE M.I.ARUN WRIT PETITION NO.28251 OF 2023 (LB-BMP) C/W WRIT PETITION NO.27102 OF 2025 (LB-BMP) IN W.P.No.28251/2023 BETWEEN: 1. MR. FAROOK SULAIMAN S/O LATE HAJEE SULAIMAN HAJEE EBRAHIN SAIT, AGED ABOUT 84 YEARS, RESIDING AT NO.9 MEG OFFICER'S COLONY, BANASWADI ROAD, BENGALURU-560 033 REPRESENTED BY REGISTERED POWER OF ATTORNEY HOLDER MR. ROHAAN SULAIMAN. 2. MR. ROHAAN SULAIMAN S/O MR. FAROOK SULAIMAN AGED ABOUT 48 YEARS, RESIDING AT NO.9 MEG OFFICERS COLONY, BANASWADI ROAD, BENGALURU-560 033. 3. MRS. SHALINA SULAIMAN D/O. MR. FAROOK SULAIMAN AGED ABOUT 44 YEARS, Digitally signed by GEETHA P G Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 RESIDING AT NO.9 MEG OFFICERS COLONY, BANASWADI ROAD, BENGALURU-560 033. REPRESENTED BY REGISTERED POWER OF ATTORNEY HOLDER MR.ROHAAN SULAIMAN. 4. SHOAIB HAROON S/O LATE HAROON SULAIMAN AGED ABOUT 61 YEARS, RESIDING AT FLAT NO.S1, 3RD FLOOR ALHAMBRA, NO.10 AGA ABBAS ALI ROAD, BENGALURU-560 042 REPRESENTED BY REGISTERED POWER OF ATTORNEY HOLDER MR. ROHAAN SULAIMAN. 5. RUQIA BANU IQBAL D/O LATE HAJEE SULAIMAN HAJEE EBRAHIM SAIT, AGED ABOUT 78 YEARS, RESIDING AT EMBASSY GROVE, NO.601, RUSTAM BHAG MAIN ROAD, BEGNALURU-560 017. REPRESENTED BY REGISTERED POWER OF ATTORNEY HOLDER MR.ROHAAN SULAIMAN. &PETITIONERS (BY SRI. SALMAN KURSHID, ADVOCATE FOR SRI. ZAFAR KHURSHID, SRI. JOB ABRAHAM, SRI NAUSHAD A.K., ADVOCATES FOR P.2 TO P.5; P.1 : DEAD) - 3 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 AND: 1. BRUHAT BENGALURU MAHANAGARA PALIKE N.R. SQUARE BENGALURU-560 002 REPRESENTED BY ITS COMMISSIONER. 2. JOINT COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE WARD III, SHANTALANAGAR, BENGALURU-560 001. 3. JOINT COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE N.R. SQUARE, BENGALURU-560 002. 4. BANGALORE METROPOLITAN TASK FORCE BRUHAT BENGALURU MAHANAGARA PALIKE N.R. SQUARE, BENGALURU-560 002 (REPRESENTED BY ADDITIONAL DIRECTOR GENERAL OF POLICE). 5. THE EXECUTIVE ENGINEER BRUHAT BENGALURU MAHANAGARA PALIKE WARD II, SHANTALANAGAR BENGALURU-560 001. 6. MR. K K MOTWANI S/O KHUBCHAND MOTWANI, AGED ABOUT 84 YEARS, RESIDING AT NO.161 BASANT, CUFFE PARADE, MUMBAI-400 005. 7. MR. DEEPAK K MOTWANI S/O K K MOTWANI, AGED ABOUT 53 YEARS, RESIDING AT FLAT NO.101, 1ST FLOOR, - 4 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 FAIRMONT TOWERS, BANASWADI MAIN ROAD, BENGALURU-560 005. &RESPONDENTS (BY SRI. B.S. SHRINIVAS, ADVOCATE FOR SRI B.L. SANJEEV, ADVOCATE FOR R.1 TO R.5; SRI BIPIN HEGDE, SENIOR ADVOCATE FOR SRI KIRAN J., ADVOCATE FOR R.6 AND R.7.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE RESPONDENT NOS.1 TO 5 TO CONSIDER REPRESENTATIONS DATED 23.05.2023 (3 NOS) (PRODUCED AS ANNEXURES-H , H1 AND H2) AND REPRESENTATIONS DATED 29.05.2023 (4 NOS) SUBMITTED BY THE PETITIONERS (PRODUCED AS J, J1, J2 AND J3), ETC. IN W.P.NO.27102/2025 BETWEEN: 1. MR. DEEPAK K MOTWANI S/O K K MOTWANI, AGED ABOUT 53 YEARS, RESIDING AT FLAT NO.101, 1ST FLOOR, FAIRMONT TOWERS, BANASWADI MAIN ROAD, BENGALURU-560 005. ...PETITIONER (BY SRI. BIPIN HEGDE, SENIOR ADVOCATE FOR SRI KIRAN J., ADVOCATE) AND: 1. BRUHAT BENGALURU MAHANAGARA PALIKE N.R. SQUARE BENGALURU-560 002 REPRESENTED BY ITS COMMISSIONER. - 5 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 2. CHIEF COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE, SHANTALANAGAR, BENGALURU-560 001. 3. ASSISTANT EXECUTIVE ENGINEER SHANTHINAGAR SUB DIVISION BRUHAT BENGALURU MAHANAGARA PALIKE, BENGALURU-560 001. 4. FAROOQ SULIAIMAN S/O LATE HAJEEB SULAIMAN HAJEE EMBRAHIM SAIT AGED ABOUT 86 YEARS R/AT NO.9, MEG OFFICER COLONY BANASWADI ROAD, BENGALURU-560 033 REPRESENTED BY REGISTERED POWER OF ATTORNEY HOLDER MR. ROHAN SULAIMAN. 5. MR. ROHAAN SULAIMAN S/O MR. FAROOK SULAIMAN AGED ABOUT 50 YEARS, RESIDING AT NO.9 MEG OFFICERS COLONY, BANASWADI ROAD, BENGALURU-560 033. 6. SHOAIB HAROON S/0 LATE HAROON SULAIMAN AGED ABOUT 63 YEARS, RESIDING AT FLAT NO.S1. 3RD FLOOR ALHAMBRA, NO.10 AGA ABBAS ALI ROAD, - 6 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 BENGALURU-560 042 REPRESENTED BY REGISTERED POWER OF ATTORNEY HOLDER MR. ROHAAN SULAIMAN. 7. RUQIA BANU IQBAL D/O LATE HAJEE SULAIMAN HAJEE EBRAHIM SAIT, AGED ABOUT 80 YEARS, RESIDING AT EMBASSY GROVE, NO.601, RUSTAM BHAG MAIN ROAD, BENGALURU-560 017 REPRESENTED BY REGISTERED POWER OF ATTORNEY HOLDER MR. ROHAAN SULAIMAN. ...RESPONDENTS (BY SRI. B.S. SHRINIVASA, ADVOCATE FOR SRI B.L. SANJEEV, ADVOCATE FOR R.1 TO R.3; R.4: DEAD; SRI SALMAN KURSHID ALONGWITH SRI JOB ABRAHAM, SRI ZAFAR KHURSHID, SRI NAUSHAD A.K., ADVOCATES FOR R.5 TO R.7.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 15.02.2025 PASSED IN APPEAL NO.16/2025 ON THE FILE OF THE CHIEF COMMISSIONER/APPELLATE AUTHORITY BBMP ANNEXURE-A1, ETC. THESE PETITIONS, COMING ON FOR ORDERS, THROUGH PHYSICAL HEARING/VIDEO CONFERENCING THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 7 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 CORAM: HON'BLE MR. JUSTICE M.I.ARUN ORAL ORDER 1. The dispute pertains to the rights over the writ petition schedule property and the building constructed thereon. 2. For the sake of convenience, the parties are referred to herein as per their status in W.P.No.28251 of 2023. 3. Petitioners are said to be the owners of writ petition schedule property. They have entered into an agreement with respondent Nos.6 and 7 for the construction of a building thereon. There is a dispute between the petitioners and respondent Nos.6 and 7 as to the nature of rights that has been conferred in favour of respondent Nos.6 and 7 in respect of the writ petition schedule property. 4. According to the petitioners, it was agreed that respondent Nos.6 and 7 were required to construct 63,000 square feet on the property and petitioners would be given - 8 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 20,000 square feet of constructed area and respondent Nos.6 and 7 would be entitled for possessory rights over the remaining 43,000 square feet of construction. It is submitted that the contract between the petitioners and respondent Nos.6 and 7 never intended to confer ownership rights in respect of 43,000 square feet of constructed property in favour of respondent Nos. 6 and 7. 5. Per contra, learned counsel for respondent Nos.6 and 7 contended that, in lieu of developing the property, respondent Nos.6 and 7 would be conferred ownership rights in respect of 43,000 square feet over the constructed property. 6. The dispute pertaining to rights in respect of 43,000 square feet of constructed area in favour of respondent Nos.6 and 7 has resulted in filing of both an original suit and arbitration proceedings between the parties concerned and the same are said to be pending. - 9 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 7. The petitioners admit that, in respect of 20,000 square feet of constructed area which is bifurcated into several shops and given separate khata numbers, the revenue documents stand in the name of the petitioners, and in respect of the remaining 43,000 square feet which is again subdivided into several shops, the khata stands in the name of respondent Nos.6 and 7 or persons claiming under them. 8. The petitioners made a representation to the BBMP alleging that there have been certain illegal construction in respect of a portion of the property which was in the possession of respondent Nos.6 and 7 and requested the BBMP to take suitable action and demolish the same. As the said representation was not acted upon, the petitioners preferred W.P.No.28251 of 2023 with the following prayers:- "(i) Issue a Writ of Mandamus directing the respondents No.1 to 5 to consider representations dated 23.05.2023 (3Nos) (produced as ANNEXURE-H, H1 AND H2) and representations dated 29.05.2023 (4 Nos) - 10 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 submitted by the petitioners (produced as J, J1, J2 and J3) and consequently direct the respondent No.1 to 5 to take appropriate action in accordance with law and ensure strict compliance of the sanction plan, fire safety norms and the bye-laws/Rules of the respondent BBMP; and (ii) Pass such other Writ or order as deemed fit in the circumstances of the case, in the interest of justice and equity." 9. In the said writ petition, an interim order was passed by this Court on 19.12.2023, which reads as follows:- 1. Sri. Pawan Kumar, learned counsel accepts notice for respondent Nos.1 to 5. Issue notice to respondent Nos.6 and 7 returnable by 20.02.2024. 2. Respondent No.5 along with the jurisdictional Assistant Director of Town Planning is directed to cause an inspection of the property No.158 to 168 presently having composite No.158, Brigade Road, Civil Station, Bengaluru, to ascertain if the construction being carried on therein is after any sanction plan for alteration / renovation is obtained and the construction put up is in accordance with such plan or not. 3. The inspection to be carried out commencing from 10.30 a.m. on 10.01.2024. Report to be submitted on or before 31.02.2024 after furnishing copies to the other counsel. 4. In the event of there being no sanction plan for such alteration or renovation and/or the renovation or - 11 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 alteration is contrary to the sanction plan or in violation of the building bye-laws, respondent No.5 and the jurisdictional ADTP are directed to ensure that there is no further construction or construction activities which take place therein. 5. Re-list on 20.02.2024." 10. It was only after obtaining the aforementioned interim order, the petitioners took steps to have respondent Nos. 6 and 7 served. 11. Thereafter, the BBMP filed a report on 20.02.2024, wherein certain deviations have been recorded in construction over the writ petition schedule property. After the report was filed, on 19.11.2024, this Court has passed the following order:- "If Sri Manmohan P.S., the learned counsel for the petitioners, relying upon the inspection report filed by the BBMP, submits that this Court must dispose of the petition directing the private respondents to remove their encroachments in the Basement, Atrium and Terrace, the learned counsel for the sixth and seventh respondents submits that she is yet to receive the copy of the BBMP's report and she may be allowed at least a week to file objections. While calling upon the learned counsel for the BBMP to ensure that the copies of the report are served on the learned - 12 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 counsel for the sixth and seventh respondents at the earliest and with liberty to these respondents to file their version to the report, the office is directed to re-list this petition on 06.12.2024." 12. Thereafter, the BBMP has issued notice under Section 248 of the Bruhat Bengaluru Mahanagara Palike Act, 2020 (for short 'the BBMP Act') to the petitioners alone and not to respondent Nos.6 and 7 and conducted the proceedings. The said proceedings have been challenged by the petitioners by filing an appeal before the Chief Commissioner, BBMP under Section 253 of the BBMP Act. In the said appeal, the Chief Commissioner, BBMP has identified the deviations and has directed the petitioners herein to remove the said deviations. As per the said order, the petitioners contend that they have removed the alleged deviation by demolishing the same. However, it is contended by respondent Nos.6 and 7 that by utilizing the order passed by the Chief Commissioner, BBMP, that portion of the construction belonging to respondent Nos.6 and 7 have been illegally removed by the petitioners. - 13 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 13. Thereafter, the petitioners filed a memo for withdrawal requesting the Court to dismiss W.P.No.28251 of 2023 as withdrawn. The said memo for withdrawal has been opposed by respondent Nos.6 and 7 on the ground that the petitioners have abused the process of law to harm respondent Nos.6 and 7. On 28.03.2025, this Court has passed the following order:- Order "Memo filed by the petitioners is placed on record. Learned counsel for the petitioners submits that the petition has been rendered infructuous. It is the case of the learned counsel appearing for the private respondents who has filed I.A.No.1/2025 and seeks for stay of the order of the Chief Commissioner, BBMP ordering for demolition of the deviated portion in Appeal No.16/2025. It is the case of the learned counsel for the respondent that this Court by interim order dated 19.11.2024 had permitted the 6th and 7th respondents to file their version as regards the report of the BBMP with respect to alleged deviations. It is the further case of the respondent that there is a dispute between the petitioners and 6th and 7th respondents and in the interregnum pursuant to the report of the BBMP it appears that it is his case that the petitioners have approached - 14 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 BBMP and has filed an appeal before the Chief Commissioner insofar as the proceedings under Section 248 are concerned. It is submitted that in the appeal No.16/2025 filed by the petitioners before the Chief Commissioner and undertaking has been made that the deviation portions would be removed. It is the case of the respondent that when the interim order dated 19.11.2024 was in force and 6th and 7th respondents were permitted to take their stand as regards the report of the respondent - BBMP, undertaking by the petitioners in an appeal filed as regards property in which the respondents 6 and 7 have an interest has been demolished partially taking note of the undertaking of the petitioners. It is submitted that the petitioner has abused the process of the Court and such aspect must be adverted to before passing any order on the main petition. The petitioners to come forth by way of affidavit of true facts to demonstrate that there has been no abuse of process of the Court causing prejudice to the respondents. Observations made by this Court are only prima facie. No doubt petitioners have filed I.A. to close the proceedings as the petition has become infructuous but unless the Court is satisfied that there is no abuse of the process of the Court as alleged by the respondent, proceedings would continue. Respondent - BBMP also to take their stand in writing. In the interregnum, in light of the contentions raised, respondent - BBMP immediately to forthwith stop any further demolition pursuant to the orders passed under Section 248 of the BBMP Act. Such order is passed taking note of contentions - 15 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 raised by the respondent that despite the order of 19.11.2024, the respondent - BBMP without reference to the Court only on the say of the petitioners has taken further action which eventually has led to abuse of process of the Court. Re-list the matter on 09.04.2025." 14. Thereafter, respondent No.7 has preferred W.P.No.27102 of 2025 with the following prayers:- "I) Issue writ, order or direction in the nature of Certiorari or anyother appropriate writ, order or direction to quash the order dated 15.02.2025 passed in appeal no 16/2025 on the file of Chief Commissioner/Appellate Authority BBMP. (Annexure A1) II) Issue writ, order or direction in the nature of mandamus or any other appropriate writ, order, or direction, directing the Respondents to pay just and reasonable compensation to the Petitioners for the illegal and arbitrary action of demolition. resulting in financial and reputational loss in so far as petitioner is concerned. III) Issue writ, order or direction in the nature of mandamus or any other appropriate writ, order, or direction, permitting the petitioner for reconstruction of the illegally demolished portion as per the plan sanction dated 18.11.1987. Annexure C IV) Issue writ, order or direction in the nature of mandamus or any other appropriate writ, order, or direction, declare that the action of the Respondents in filing of appeal no 16/2025 and obtaining order of demolition dated 15.02.2025 by giving consent before the Chief - 16 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 Commissioner/Appellate Authority BBMP when the interim order dated 19.12.2023 was obtained by the respondent in writ petition 28251/2023 is fraud played on court abuse of process of court proceedings. Annexure A, Al and F V) Pass any order/s as this Hon'ble Court deems fit in the interestof justice." 15. Respondent Nos.6 and 7 contends that the BBMP acted in haste to favour the petitioners herein and the orders of the BBMP have been passed in respect of that portion of the writ petition schedule property admittedly which has been in possession of respondent Nos.6 and 7 or persons claiming under them, without due notice to any of them. 16. The petitioners contend that it is their prerogative to withdraw the writ petition which they have filed, as the same has been filed to remove the illegal construction on the property of which they are the owners and the purpose having been served by the orders passed by the BBMP, nothing remains in the writ petition. - 17 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 17. The questions that arise for consideration are:- i. Whether the petitioners have abused the process of law? ii. Whether the BBMP erred in not hearing respondent Nos.6 and 7 and if so, what relief respondent Nos.6 and 7 are entitled to? 18. The petitioners admit that they got the property developed through respondent Nos.6 and 7. They also admit that 43,000 square feet of constructed area is in possession of respondent Nos.6 and 7. The only question that arise for consideration is the exact nature of rights of respondent Nos.6 and 7 over the said 43,000 square feet of constructed area. In respect of the said question, there is already an original suit and arbitration proceedings said to be pending between the parties and the same is not the subject matter of these writ petitions. Insofar as it relates to removal of illegal construction on the property, admittedly 43,000 square feet of constructed property is - 18 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 in possession of respondent Nos.6 and 7 or persons claiming through them and khata is also said to be standing in the names of respondent Nos.6 and 7. Under the said circumstances, the BBMP ought to have heard respondent Nos.6 and 7 in respect of any alleged illegal construction in respect of 43,000 square feet of property which is said to be in possession of respondent Nos.6 and 7. They could have heard the petitioners alone only in respect of 20,000 square feet of constructed area which is in exclusive possession of the petitioners. To that extent, the impugned orders passed by the BBMP is erroneous. 19. Insofar as it relates to action of the petitioners in filing the writ petition and the proceedings before the BBMP and acting in furtherance of the orders passed by the BBMP, it shows that petitioners have got demolished a portion of the building which was in possession of respondent Nos.6 and 7, which is impermissible under the provisions of BBMP Act. 20. Section 248(1) (iii) of the BBMP Act reads as under:- - 19 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 "248. Demolition or alteration of buildings or well work unlawfully commenced, carried on or completed.- (1) If the Zonal Commissioner is satisfied,- (i) xxx (ii) xxx (iii) that any alteration of or addition to any building or hut or any other work made or done for any purpose into, or upon any building or hut, has been commenced or is being carried on or has been completed in breach of Section 247, he may make a provisional order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Zonal Commissioner, has been unlawfully executed, or make such alterations as may, in the opinion of the Zonal Commissioner, be necessary to bring the work into conformity with the Act, rules, bye-laws, directions or requisitions as aforesaid, or with the plans or particulars on which such permission or orders was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well or hut." 21. However, there is a dispute as to whether the petitioners have removed only the deviations as recorded by the BBMP or much more than that, as alleged by respondent Nos.6 and 7. Further, this Court under Article 226 of the Constitution of India, cannot decide disputed questions of fact and under the given peculiar facts and circumstances of the case, cannot pass an order as to the - 20 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 compensation that respondent Nos.6 and 7 may be entitled to. 22. It is always open for respondent Nos.6 and 7 to work out their remedies before the Civil Court in this regard. 23. In respect of the permission sought by respondent No.6 to put up construction as per the sanction plan dated 18.11.1987, the counsel for BBMP submits that they have no objection for the same. 24. Hence, the following:- ORDER i. Writ Petition No.28251 of 2023 is dismissed as withdrawn. ii. Writ Petition No.27102 of 2025 is disposed of as follows:- a) BBMP committed an error in hearing only the petitioners in W.P.No.28251/2023 and passing an order to demolish the property which was said - 21 - HC-KAR NC: 2025:KHC:35727 WP No. 28251 of 2023 C/W WP No. 27102 of 2025 to be in possession of respondent Nos.6 and 7 or persons claiming through them. b) Liberty is granted to respondent Nos.6 and 7 to sue the petitioners in W.P.No.28251/2023 for the damages that they might have incurred in the process. c) Respondent No.6 is permitted to put up construction in respect of his share in accordance with the sanction plan dated 18.11.1987. d) Pending interlocutory applications, if any, stand disposed of. Sd/- (M.I.ARUN) JUDGE VMB List No.: 1 Sl No.: 27