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WP No. 8389 of 2023

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 24TH DAY OF AUGUST, 2023

PRESENT
THE HON'BLE MR. PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 8389 OF 2023 (LB-BMP)
BETWEEN:

1. SRI SAM P PHILIP

S/O SRI PHILIP SAMUEL
AGED ABOUT 44 YEARS
R/AT NO.44, 38TH CROSS
19TH MAIN, 5TH BLOCK
HBR LAYOUT
BENGALURU -560 043

2. KRISHNA S K
S/O SHARANA SWAMY
AGED ABOUT 51 YEARS
NO.45, 38TH CROSS, 19TH MAIN
HBR LAYOUT, 5TH BLOCK
Digitally signed BENGALURU -560043.
by AMBIKA H B
Location: HIGH 3. JAGADEESAN T P
COURT OF S/O PARTHASARATHI
KARNATAKA AGED ABOUT 66 YEARS
NO.39, 19TH MAIN, 38TH CROSS
HBR LAYOUT, 5TH BLOCK
BENGALURU -560043.

4. SANTOSH GOWDA K
S/O LATE KRISHNAPPA
AGED ABOUT 28 YEARS
FLAT NO.311, 19TH MAIN, 5TH BLOCK
HBR LAYOUT
BENGALURU -560043
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5. JESSY LAWRENCE
S/O K V JOHN
AGED ABOUT 55 YEARS
NO.13, 38TH CROSS, 19TH MAIN
HBR LAYOUT, 5TH BLOCK
BENGALURU -560043

6. R GNANASHEKAR
S/O RAGHAVAN
AGED ABOUT 50 YEARS
NO.168, 19TH MAIN, HBR LAYOUT
5TH BLOCK
BENGALURU -560043.

7. SEENA
D/O SEBASTIAN
AGED ABOUT 39 YEARS
16TH CROSS, 19TH MAIN
HBR LAYOUT, 5TH BLOCK
BENGALURU -560043.

8. RITESH
S/O SANTOSH S
AGED ABOUT 35 YEARS
NO.44, 38TH CROSS, 19TH MAIN
HBR LAYOUT, 5TH BLOCK
BENGALURU -560043.
…PETITIONERS

(BY SRI PAVAN KUMAR N, ADVOCATE FOR SRI L.SRINIVASA

BABU, ADVOCATE)

AND:

1. THE STATE OF KARNATAKA

REP. BY PRINCIPAL SECRETARY
HOUSING & URBAN DEVELOPMENT DEPARTMENT
M S BUILDING
BENGALURU -560 001

2. THE BRUHAT BENGALURU MAHANAGARA

PALIKE (BBMP)
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REP. BY ITS COMMISSIONER

J C ROAD
BENGALURU -560 001.

3. THE ASSISTANT EXECUTIVE ENGINEER

HRBR LAYOUT SUB DIVISION
BRUHAT BENGALURU MAHANAGARA PALIKE
BENGALURU -560 043.

4. INCOME TAX DEPARTMENT

REP. BY PRINCIPAL CCIT
C R BUILDING, NO.1 QUEEN'S ROAD
BENGALURU -560 001.

5. MASJID E-ASHRAFIT
REPRESENTED BY PRESIDENT
NO.43, 38TH B CROSS
19TH MAIN, HBR LAYOUT
5TH BLOCK
BENGALURU -560 043.
…RESPONDENTS
(BY SMT.NILOUFER AKBAR, AGA FOR R1)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226

AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
WRIT OF MANDAMUS OR ANY OTHER WRIT DIRECTING
RESPONDENT NO.2 TO CONSIDER THE REPRESENTATION
DATED 29.03.23 MARKED AS ANNEXURE-R AND TO TAKE
ACTION TO RESTRICT THE USAGE OF THE SAID RESIDENTIAL
PROPERTY FOR ANY OTHER PURPOSES IN THE SCHEDULE
PROPERTY AND REGULATE THE SAME SO AS TO NOT TO CAUSE
HINDRANCE TO THE PETITIONERS AND OTHER RESIDENTS OF
THE LOCALITY TO ENJOY THEIR PROPERTY AND THEIR RIGHT
TO LIVE PEACEFULLY AND ETC.

THIS WRIT PETITION COMING ON FOR PRELIMINARY

HEARING THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
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ORDER

1. The petitioners, who are claiming to be the

residents of HBR Layout, Bengaluru, have filed the present

Public Interest Litigation seeking the following reliefs:-

"a) Issue Writ of Mandamus or any other

writ directing the respondent No.2 to consider
the representation dated 29.03.2023 marked
as Annexure-R and to take action to restrict
the usage of the said residential property for
any other purposes in the schedule property
and regulate the same so as to not to cause
hindrance to the petitioners and other
residents of the locality to enjoy their property
and their right to live peacefully.

b) Issue Writ of mandamus directing

respondent No.3 (BBMP) to cancel the
sanction plan dated 19.01.2022 issued by
respondent No.3 (BBMP) as it is violated by
the Building Bylaws and as well as violated
Indian Trust Act, 1882."

2. It is contended by learned counsel for the

petitioners that respondent No.5 is a Public Charitable Trust

owning an immovable property having purchased the same

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under a Deed of Sale. That the said property is located in a

residential zone. That the respondent-trust applied and

obtained a plan for residential building to be constructed on the

said property. However, it commenced construction of a

religious structure. The learned counsel for the petitioners

further submits that initially, the petitioners had approached

this Court by filing a Public Interest Litigation in

W.P.No.8753/2020 with a prayer to direct respondent Nos.1 to

3 to take immediate action to stop construction that was being

put up by respondent -trust in the Schedule Property. That the

Division Bench of this Court vide order dated 21.09.2021,

disposed of the said writ petition by granting thirty days' time

to respondent-trust to take appropriate corrective measures in

the matter failing which, Bruhat Bengaluru Mahanagara Palike

(BBMP) was directed to demolish the entire structure within one

week and respondent-trust was given liberty to apply for

building plan and was directed to construct the building after

issuance of the sanction plan by the BBMP. He further

submitted that since the respondent Nos.1 to 3 committed an

act of willful disobedience of the order dated 21.09.2021, the

petitioners filed CCC No.167/2022. Vide order dated

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07.09.2022, the Division Bench of this Court disposed of the

contempt petition in view of the affidavit filed by BBMP by

observing that it is not inclined to proceed further with the

contempt proceedings in view of the stand taken by BBMP in its

affidavit. The learned counsel also invited our attention to the

notice dated 13.10.2022 issued by BBMP to respondent-trust

and the sanctioned plan, the copies of which are annexed to

the writ petition as Annexures-P and L respectively.

3. A perusal of the statement of objections filed by

respondent-trust in CCC No.167/2022 shows that it was

contended in the W.P.No.8753/2020 that the schedule property

totally measures 3,200 sq.ft. and respondent-trust was

constructing building in 800 sq.ft. without obtaining licence

from BBMP. It was further contended that earlier, there was a

building in the schedule property and respondent-trust was

conducting prayers and there was also a school for the poor

and needy children of the surrounding area. It was stated in

the statement of objections that as there was shortage of

rooms for school children, respondent-trust decided to demolish

the old building and tried to put up a new building.

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4. A perusal of the order dated 21.09.2021 passed by

the Division Bench of this Court in W.P.No.8753/2020 shows

that the same was disposed of by granting thirty days' time to

respondent-trust to take appropriate corrective measures in the

matter failing which, Bruhat Bengaluru Mahanagara Palike

(BBMP) was directed to demolish the entire structure. Further

order dated 07.08.2022 passed by the Division Bench of this

Court in CCC No.167/2022 reveal that this Court had taken

note of the compliance of the order dated 21.09.2021 passed in

the above writ petition No.8753/2020. The said CCC

No.167/2022 was disposed of by the Division Bench of this

Court vide its order dated 07.09.2022, with the following

observations;

"2. From perusal of paragraph 5 of the

affidavit filed on behalf of the respondent
Nos.1 and 2, it is evident that the portion
which was not in consonance with the building
plan sanctioned in favour of respondent No.3,
has been demolished on 20.10.2021. A fresh
building plan was submitted which was
sanctioned on 18.01.2022. It is further
submitted that the Officers of the BBMP shall
monitor the construction work which shall be
taken up by the respondent No.3, to ensure
that the same shall be in consonance with the
sanctioned building plan.

3. In view of the aforesaid stand taken

by the BBMP in its affidavit, we are not
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inclined to proceed further with the contempt

proceedings."

5. Now what emerges from the perusal of the material

placed on record is that pursuant to the sanctioned plan and

the permission granted by BBMP, respondent-trust has

constructed a new building which is being used for running a

residential school (Madarasa) for the poor and needy children in

the surrounding area and a hall in the building is being used for

conducting prayers.

6. The submission of the learned counsel for the

petitioners is that since permission was granted by BBMP to run

a residential school, the building could not have been utilized

for conducting prayers. He further submits that at times, there

would be large gathering of people for offering prayers which is

causing disturbance to the petitioners and other residents in

the area.

7. In spite of repeated queries put to the learned

counsel for the petitioners as to whether there is any

prohibition in any Act or Rules regarding use of a building

situated in a residential area for offering prayers by the

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occupants or number of guests to be gathered in a particular

residence, the learned counsel for the petitioners is unable to

show any specific provision. When we asked the learned

counsel for the petitioners as to whether any incident was

reported at any point of time that the persons offering prayers

had conducted themselves in an unruly manner, the learned

replied in the negative.

8. It is not the case of the petitioners that the building

presently constructed is in violation of the sanctioned plan.

Learned counsel for the petitioners also confirms that the

present building is in conformity with the sanctioned plan.

Though it is pleaded that the respondent-trust has put up

religious structure, even the photographs produced by the

petitioners themselves would not in any manner indicate that

the subject building is a religious structure. It is also seen from

the material placed on record that in the earlier round of

litigation, the petitioners themselves contended that earlier

there was a building in the schedule property and respondent -

trust was running a residential school (Madarasa) and also

offering prayers. Considering all these facts, we are of the

opinion that this writ petition is filed only on assumptions and

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presumptions. The writ petition being devoid of any merits

deserves to be dismissed. Accordingly, the same is dismissed.

Sd/-
CHIEF JUSTICE

Sd/-
JUDGE

KPS
List No.: 1 Sl No.: 13