IN THE HIGH COURT OF KARNATAKA AT BANGALORE
CCC (Crl) 00/2010
BETWEEN:
Hon'ble High Court of Karnataka …Complainant
AND:
Mrs. ABC … Accused/respondent
STATEMENT ON BEHALF OF THE RESPONDENT
Respondent most respectfully submits as under:
- The present proceedings are pending pursuant to the order of this Hon'ble Court in W.P.No.00/2005 dated 13/3/2009.
- It is submitted that respondent purchased property bearing New No.4, Old No.5 situated O’ssongnessey Road, Langford Town, Bangalore, totally measuring 1642 Sq. ft., in terms of registered sale deed dated 26.5.1988, for valuable consideration. After getting the Katha changed in her name, during year 1997, respondent with an intent to construct thereon a building comprising basement, ground, first and second floors, applied for and got approval of building plan vide L.P.No.0/1997-98 dated 27.5.1997 from the then BMP. Copy of L.P.No.0/1997-98 dated 27.5.1997 is produced as ANNEXURE R1. Pursuant to the plan approved, respondent constructed the building consisting of basement, ground, first and second floors. The construction was complete in the year 1998 itself.
- It submitted that in terms of registered sale deed dated 28.1.1999, out of the constructed area respondent sold an extent of 1275 sq. ft. in the first floor together with 1/5th undivided share in the land equivalent to 328 sq. ft. and 2 car parking space in the basement floor to Orchid Voyage Private Ltd. Copy of Sale Deed dated 28.1.1999 is produced as ANNEXURE R2. Under the said Sale Deed dated 28.1.1999, Orchid Voyage Private Ltd. had given no objection to respondent to proceed with further construction on the second floor.
- During the year 1999 as respondent intended to put up further construction of 3rd floor over the then existing second floor. Therefore she approached and hired the services “XYZ’s, a firm of Architects, Engineers and Interior Designers, at Vanivilas Road, Basavangudi for preparation of the building plan and for securing the plan sanction from the Bangalore Municipal Corporation (Corporation). Said ’XYZ though Mr.T.V COD. who was a registered Corporation Civil Engineer, prepared and furnished to the respondent sanctioned plan bearing L.P.No00/98-99 dated 20.11.1999. Based on the said plan the construction of 3rd floor/pent house was commenced and completed in the year 2000. Copy of L.P.No.00/98-99 dated 20.11.1999 is produced as ANNEXURE R3.
- After completion of the building respondent has obtained connection for Electricity, Water etc. from the Competent Authorities. The entire construction has been assessed by the Corporation authorities to property tax and respondent has been paying the property tax in respect of 3rd floor portion/ Pent house (Duplex). Copies of the property tax paid receipts are produced as ANNEXURE R4.
- Subsequently, respondent sold an area of 1230.1054 sq. ft. on the ground floor along 1/5th proportionate undivided share in the land equivalent to 328 sq. ft. in favour of her husband DOC in terms of registered sale deed 18.10.2001 for establishing Dental Research Centre. DOC pursuant t the sale deed has got changed Katha in respect of portion sold to him his name and is in possession and enjoyment of the said portion.
- It is submitted that the Orchid Voyage Private Ltd., though was required to pay to respondent totally a sum of Rs.5,22,588/- towards maintenance charges, KEB and BWSSB deposits/ charges in respect of power/water connection to the floor purchased by Orchid Voyage Private Ltd., charges towards installation of lift. etc. as also bear property tax in respect of its portion, it failed to meet the said liabilities. As such respondent issued notices to Orchid Voyage Private Ltd. on 18.5.2001 and 30.3.2001 seeking the payment. To avoid the liability to respondent and to harass her, Orchid Voyage Private Ltd. started alleging violation in construction and threatened to bring about action of demolition.
- At the instigation of Orchid Voyage Private Ltd., who has an axe to grind against respondent, the officials of the Bangalore Municipal Corporation initiated proceedings for demolition of the construction put by respondent. In the circumstances, on 2.6.2005, respondent made a representation to the Corporation Authorities to verify the building to ascertain compliance with the sanctioned plan and also requested that in case any deviation was found the same be regularized. However as the Corporation officials persisted with the threat of undertaking demolition, respondent was constrained to file Writ Petition No.00/2005 for a direction to the Corporation to consider her representation dated 2.6.2005, wherein, Corporation having entered appearance took a stand that Provisional Order under Section 321(1) of Karnataka Municipal Corporation Act (KMC Act) had been issued on 7.4.2005 followed by confirmation order under Section 321(3) of KMC Act on 15.4.2005, though as a matter of fact no such orders were ever served on respondent nor was respondent afforded any opportunity. Copies of the provisional and confirmation orders, are produced as ANNEXURE R8.
- This Hon'ble Court having taken note that respondent had not been served with the alleged notice, in terms of his order dated 16.2.2009 was pleased to dispose of W.P.No.00/2005, by directing to treat the Provisional Order dated 7.4.2005 as the provisional order issued to respondent as on date and granted one weeks time to respondent to file objections to the same. Accordingly, on 20.2.2009 respondent submitted objections to the Provisional Order defending the construction put up by her, based on the plans sanctioned by the Corporation during the years 1997 and 1999. Copy of the objections dated 20.2.2009 is produced as Annexure-R9. It is submitted that in objections dated 20.2.2009 to the provisional order of the Corporation, the respondent specifically referred to and relied on L.P.No.00/98-99 dated 20.11.1999, since she believed the same to be a genuine document and duly issued by the Corporation. In case of slightest doubt as to its authenticity the respondent would not have ventured to rely on the said plan before the Corporation.
- In the meantime, to further harass and coerce respondent into terms, Orchid Voyage Private Ltd. filed W.P.No.00/2005, seeking direction to the Corporation authorities to demolish alleged unauthorized construction put up by respondent. Respondent having entered appearance filed counter.
- In W.P.No.00/2005, Orchid Voyage Private Ltd. had filed I.A.No.0/2006, seeking for direction to respondent No.1 to 3 to produce original files pertaining to L.P.No.00/1997-98 dated 29.3.1997 and also original file pertaining to LP No.00/98-99 dated 26.11.1999. The Corporation objected to I.A.No.0/2006 by filing statement of objections wherein while admitting that respondent had obtained sanction plan for construction of basement, ground plus first and second floor vide L.P.No.0/1997-98 dated 27.5.1997, it was contended that respondent had produced a tampered document stated to be a sanctioned plan for 3rd and 4th Hon'ble Court in terms of order dated 9.2.2007 was pleased to reject the I.A.No.0/2006 filed by Orchid Voyage Private Ltd., taking into account the serious dispute over plan (vide L.P.No.497/98-99 dated 20.11.1999) on the ground that in the writ proceedings plea of fraud being raised by Orchid Voyage Private Ltd. could not be determined until parties are given ample opportunity of adducing evidence etc. Copy of order dated 9.2.2007 in W.P.No.00/2005 is produced as ANNEXURE R10.
- Orchid Voyage Private Ltd. thereafter filed an I.A. No.0/2008 in W.P.No.00/2005, seeking reference of the matter for initiating criminal contempt against respondent on the ground that as per the contention of Corporation, respondent had produced a tampered document. In W.P.No.00/2005, the Corporation filed a memo on 24.2.2009 producing inter alia extract of register for the year 1998-99 in respect of issue of sanction plan from the Office of the Asst. Executive Engineer, Shanthinagar Sub-Division, Bangalore and a letter stated to have been issued by the Asst. Executive Engineer Richmond Town Division, to the effect that in the year 1998-99, the Office had received only 217 applications for grant of sanction plan and L.P.No.00 of 1998-99 in Shanthinagar Sub Division is not received or sanctioned and also plan sanctioned dated 11.1.1999 for certain SOD containing signature of Assistant Executive Engineer. It is submitted that extract of register for the year 1998-99 in respect of issue of sanction plan from the Office of the Asst. Executive Engineer, Shanthinagar Sub-Division was an incomplete document in that while it shows issuance of plan from 2.4.1998 upto 7.4.1999, it did not contain the records in respect of plans subsequent to said date and therefore is of no assistance to allege that L.P.No.00/98-99 dated 20.11.1999, is a got up document. The letter issued by the Asst. Executive Engineer Richmond Town Division, to the effect that in the year 1998-99, the Office had received only 217 applications for grant of sanction plan and L.P.No.00 of 1998-99 in Shanthinagar Sub Division, did not even bear the reference number. It is improbable that after 7.4.1999, no plan is sanctioned. In fact the L.P.No.00/98-99 stated to have been sanctioned on 20.11.1999, Corporation ought to have produced the entire register pertaining to the year 1999-2000 and production of incomplete extract of register, that too pertaining to the year 1998-1999, could not be the basis to allege non existence of L.P.No.00/98-99 dated 20.11.1999. Copy of memo dated 24.2.2009 filed by the Corporation in W.P.No.00/2005 is produced as ANNEXURE R11.
- By order dated 13.2.2009, on the basis that L.P.No.00/98-99 dated 20.11.1999, is a created document and that respondent has prima facie committed criminal contempt Hon'ble Court allowed I.A.No.0/2008 in W.P.No.00/2005 and referred the matter to this Hon'ble Court for initiation of contempt proceedings against respondent, pursuant whereto the above proceedings are pending. Appeal in W.A.No.00/2009 filed by respondent was dismissed on 5/9/2013 reserving liberty to respondent to urge all grounds urged in the appeal in the above proceedings. Copy of final order in W.A.No.00/2009 is produced as ANNEXURE-R12.
- In the meantime, on 9.3.2009, the Assistant Executive Engineer, BBMP without holding any enquiry and without opportunity to respondent, again in apparent collusion with Orchid Voyage Private Ltd. passed an order confirming the provisional Order. In the order dated 9.3.2009 it has been stated that Annexure R3 plan “appears to be” a got up one. Copy of Confirmation Order dated 09.03.2009 issued by office of Assistant Executive Engineer is produced herewith as ANNEXURE-R13. On 16.3.2009 respondent has filed Appeal No.00/2009 under Section 443A of KMC Act before Karnataka Appellate Tribunal at Bangalore, wherein an interim order of stay is granted. In the light of allegations of deviation being made, without prejudice, on 20.2.2009, respondent also made an application for regularization of the alleged deviation to the Corporation under Karnataka Town and Country Planning (Regularization of Unauthorized Development or Construction) Rules 2007 and had tendered the required fee. Copy of the application submitted by respondent dated 20.2.2009 is produced herewith as ANNEXURE-R15. Application of respondent is yet to be considered.
- It is submitted that in the light of passing of the confirmation order and respondent having taken recourse against the same before KAT, the ld. Single Judge was pleased to dispose W.P.No.00/2005 on 6/6/2014.
- It is most humbly submitted that the respondent had always believed L.P.No.00/98-99 dated 20.11.1999 to be a genuine document. In the light of stand taken by the Corporation as to its authenticity, being alarmed, on 16.6.2008 respondent made an application to the concerned Executive Engineer of BBMP requesting for being furnished certified copy of L.P.No.00/98-99 dated 20.11.1999, which did not elicit any response whatsoever. Again on 20.2.2009, respondent made another application to the concerned Asst. Executive Engineer of BBMP for being furnished with the certified copy of L.P.No.00/98-99 dated 20.11.1999, however without any response. Copies of the acknowledged copy of applications of respondent to Executive Engineer dated 16.6.2008 and 20.2.2009 are produced herewith as ANNEXURE R17 AND R18,
- Respondent also addressed a communication dated 14/4/2009 to the Registered Corporation Civil Engineer, Mr.T.V.COD who was engaged for preparation and obtaining approval of the second building plan, requesting to furnish the receipts/challans for having submitted the plan for approval. The copy of the letter dated 14/4/2009 addressed to Registered Corporation Civil Engineer, Mr.T.V.COD, bearing acknowledgment of receipt is produced as ANNEXURE R19. As there was no reply, on subsequent enquiry respondent learnt that Mr.T.V.COD was no more associated with XYZ.The owner of the firm Mr.YXZ unfortunately passed away in a road accident. Newspaper report about the demise of Mr.YXZ is produced as ANNEXURE R20. As inspite of persistent verbal follow ups the respondent did not get the receipts/challans from for having submitted the plan for approval, on ___/2014 the respondent had again requested XYZ for the same in writing. Copy of the letter addressed by the respondent to YXZ is produced as Annexure R13.
- Respondent also made an application dated 20/4/2009 under the RTI Act to BBMP for being provided the copies/extract of the ‘application with enclosures to plan entry register’, ‘plan submission register’, ‘spot inspection report’, ‘ground rent receipt book’, ‘license book’, ‘sanctioned plan entry register’, ‘challan book’, sanctioned plan acknowledgement book’ and “tracing paper plan file’ for the relevant period being 1/11/1998 to 30/11/1999. Copy of application dated 20/4/2009 under the RTI Act is produced as Annexure R14. The Public Information Office of the Corporation having failed to provide the requisite information, the respondent had filed appeal before the Appellate Authority, which having been closed without the documents requisitioned having been furnished to the respondent, the respondent has filed an appeal before the Information Commission, which is pending consideration. Copy of the appeal filed before the Information Commission along with its annexures is produced as Annexure R15.
- It is most humbly submitted that the respondent is a law abiding citizen, having utmost regard for law. The respondent who is a lady and a housewife, and not conversant with the building byelaws and the formalities to be complied for obtaining sanction of plan from cooperation had entrusted the said work to XYZ Registered Corporation Civil Engineer. The respondent always believed that the plan furnished by XYZ Registered Corporation Civil Engineer was genuine. Accordingly, in her objections to provisional notice of Corporation, she had referred to and relied on the same. Only because the respondent believed the plan to be genuine, she had relied on the same in W.P.No.00/2005. In fact there was never an occasion or reason for respondent to doubt the genuineness of the plan furnished by XYZ/ Registered Corporation Civil Engineer. The Corporation having raised questions as to existence of the plan, the respondent took immediate steps verify the correctness of such stand. The respondent at present is in an unfortunate predicament where she is neither in a position to ascertain the correct position from XYZ/ Registered Corporation Civil Engineer, nor has the Corporation come forward with complete records to enable the respondent to verify the correctness of its stand.
- The production of plan in W.P.No.00/2005 was done bonafidely, without any intent to mislead in any manner.
- In the circumstances, the respondent is hereby tendering apology and prays for discharge.
WHEREFORE it is most respectfully prayed that this Hon’ble Court may be pleased to discharge the respondent and drop the contempt proceedings against her, in the interest of justice and equity.
Bangalore
Dated Advocate for Respondent
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
CCC (Crl) 00/2010
BETWEEN:
Hon'ble High Court of Karnataka .…Complainant
AND:
Mrs. ABC. .… Accused/respondent
APPLICATION UNDER SECTION 317 OF THE CODE OF CRIMINAL PROCEDURE.
- The present proceedings are pending pursuant to the order dated 13/03/2009 of this Hon'ble Court in W.P.No.00/2005.
- That, this Hon’ble court on an earlier occasion had passed order dated 18/07/2014 directing the registry to post the above matter for further consideration after the disposal of the Appeal No.00/2009 by the Karnataka Appellate Tribunal.
- It is submitted that, the accused herein is a women.
- That, there is a wedding in the family of the accused on 09/08/2017 and the reception scheduled today. As such the presence of the accused with the family members is of some importance.
- The absence of the accused is neither deliberate nor intentional but, for reason stated herein above.
- Hence, this application is filed seeking exemption of the accused from being personally present before this Hon’ble court today (20/06/2017)
WHEREFORE this Hon’ble court be pleased to exempt with personal presence of the accused before this Hon’ble court today (08/08/2017) in the interest of justice and equity.
Date:07/08/2017 Advocate for Accused
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
CCC (Crl) 22/2010
BETWEEN:
Hon'ble High Court of Karnataka .…Complainant
AND:
Mrs. ABC. .… Accused/respondent
AFFIDAVIT
I, ABC S W/o Dr.DOC aged about 55 years, R/o No.4, Old No.5, Bangalore do hereby solemnly affirm and state on oath as follows;
- I, State that, I am the sole Accused/respondent in the above case and I, am aware about the facts of the present case.
- I, state that, the statements made in the accompanying additional statement of objections are true and correct to the best of my knowledge and information and I, believe them to be true.
- I, sate that Annexures R 21 to produced along with Additional statement of objections are true copies of the original.
Date:
Place:Bangalore DEPONENT
Identified by me
Advocate
No.of corrections
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
CCC (Crl) 22/2010
BETWEEN:
Hon'ble High Court of Karnataka .…Complainant
AND:
Mrs. ABC. .…Accused/respondent
ADDITIONAL OBJECTION STATEMENT BY THE ACCUSED
- The present proceedings have been initiated by the Registry of this Hon’ble court following the direction of a learned single judge of this Hon’ble court dated 13/3/2009in WP. .No.00/2005.
- It is submitted that, power to initiate any contempt proceedings is not traceable to Section 15 of the Contempt of Court Act and or to Article 215 Constitution of India. In the present case, the permission of the Advocate General, High court of Karnataka is not obtained before initiating the present contempt proceedings against the accused herein. It is now well settled that prior permission of Advocate General, State of Karnataka Karnataka is mandatory for initiating proceedings for criminal contempt either under section 15 of contempt of Court Act or under Article 215 of Constitution of India. Since, the registry of this Hon’ble court has not obtained prior sanction/permission of the Advocate General, State of Karnataka the present proceeding is premature and therefore liable to be dropped.
- It is submitted that, even in the event of this Hon’ble court were to hold that, the complaint is sustainable, then in view of section 10 of the contempt of court act, the order passed by the Learned single Judge in WP No.00/2005 falls within the definition of an offence against public order and the same is punishable under section 195 of Indian Penal Code. If that be so in view of section 340 of the criminal procedure code, the Registry of this Hon’ble court should lodge a complaint before the Jurisdiction Magistrate and not before this Hon’ble court. It is therefore submitted that, section 10 of the contempt of Court Act prohibits initiation of contempt proceedings if the act complained off is an offence punishable under the provisions of Indian Penal Code .
- That, in view of the above the present proceeding being initiated on the premise that prima facie it appears that, the accused has produced a fabricated document before this court; these, proceedings would cry foul of section 10 of the Contempt of Court Act and therefore liable to be dropped.
- It is further submitted that, even otherwise in response to a letter the, BBMP way back in the year 2009 itself had addressed letter confirming about T.V.COD who had obtained the Sanctioned in favor of the Accused herein is a registered Engineer with the BBMP having registered with the BBMP way back in the year 1990 itself . Copy of the said Letter is herewith produced as Annexure R.21.
- It is further submitted that, XYZ, Arcitects, Structural Engineers Etc. have also issued a letter dated 5/9/2017 addressed to the Accused stating about they having provided professional services during construction of the Residential Building in question. Copy of the said Letter is produced as Annexure R.22. It, is but natural to believe that, any Architect would not have carried/provided the structural assistance to the Building of the Accused unless the owner of the Building has a secured sanctioned plan from the Local planning Authority..
WHEREFORE it is most respectfully prayed that this Hon’ble Court be pleased to discharge the Accused/respondent and drop the Contempt proceedings against her, in the interest of justice and equity.
04/10/2017
Bangalore Advocate for Accused
