Karnataka High Court Directs BBMP To Digitize Old Property Records

The Karnataka High Court has directed the Chief Commissioner of Bruhat Bengaluru Mahanagara Palike (BBMP), to initiate digitization of all the old property records, so that the same is available electronically/digitally tagged.

A single judge bench of Justice Suraj Govindaraj had directed the Chief Commissioner of BBMP to co-ordinate with the Principal Secretary, e-Governance Department to formulate a mechanism for making available the plan sanctions, katha certificates, tax paid receipts, Self-Assessment forms etc., as regards any particular property to all officers of the corporation who are authorized to take penal action under the Act, by granting them user credentials in terms of user name and password so that the same is not available to any third parties.

It said, “The Corporation who is in custody of the documents cannot call upon the citizen to furnish the selfsame documents which are in the custody of the Corporation and on account of non-production draw any adverse inference.”

Further the court said “It may also be required that documents relating to a particular property are available with other departments like Revenue Department, Urban Development Department, Planning Authority, Sub-Registrar office, etc., it would therefore be required that those documents are also mapped and tagged to the said property, so that all the documents relating to the said property are available to any officer authorized to take any penal action under BBMP Act, 2020.”

It added “In this regard, cooperation from those departments through Principal Secretary Urban Development Department, Principal Secretary Finance Department, Principal Secretary Rural Development and Panchayath Raj Department, BESCOM, BWSSB and any other department would be required to be solicited and the records as also documents available with those departments be mapped and tagged with the concerned property.”

The directions were given while allowing a petition filed by one Aslam Pasha. It was stated that he had entered into a joint development agreement on 27.8.2020 with the developer M/s Hindustan Developers who had applied for and obtained a sanction plan and building licenses from Assistant Director Town Planning (ADTP), BBMP. However, on a complaint having been filed against the said construction notices has been issued under Section 313 of BBMP Act, 2020 followed by notices under Section 248(1), 248(2) and Confirmatory Order under Section 248(3) of the BBMP Act, 2020.

Complainant Gopalkirshna, being aggrieved by the inaction on part of the BBMP had approached the High Court which disposed the mater by permitting the petitioner and the developers to challenge the notices issued under Section 248(1), 248(2) and 248(3) and until then restrain the respondents from taking coercive steps.

Before the order of the court the petitioner had already filed an appeal against the notices which came to be disposed by order dated 17.6.2023 on the ground that the petitioner had not produced the plan sanction in respect of such property and in that view of the matter, it was held that the construction was unauthorized.

The bench on going through the records held that “The Assistant Executive Engineer does not have the power under Section 248 to issue either the notices or the confirmatory order.”

It added “In that view of the matter, the said notices themselves are non est and this aspect ought to have been considered by the Commissioner while dealing with appeal under Section 253.”

It notedNoting that in the appeal, the Commissioner has come to a conclusion that since plan sanction has not been produced, the construction is illegal. On the other hand the petitioner had contended that there is a plan sanction issued and the same could not be produced in time before the commissioner.

The court thus remarked “The Plan which has been sanctioned in favour of the petitioner has been so sanctioned by the Corporation itself. When sanctions are made by the Corporation and/or documents are issued by the Corporation which are in the custody of the Corporation though with a different department than that which had issued a notice under Section 248, it would but be required for the Zonal Commissioner who is authorized to issue notices under Section 248 to verify those documents from the records of the Corporation.”

The bench opined “The plan sanction, khatha certificate, tax paid receipt, self-assessment being available with the Corporation itself, all these documents can be examined by the concerned officers without requiring a private party to produce it. This would also obviate any fabrication or falsification of documents.”

Following which it said “The different departments of the Corporation though deal with different aspects, the Corporation is one single entity comprising all those departments and it is therefore required that access to all the documents are available to any person authorized under the Act to take penal measures by issuing notices.”

It added “It does not now lie for the Corporation to contend that the plan has been sanctioned by the ADTP but the notices has been issued by the Assistant Executive Engineer (who is not authorized to under Section 248) or the Zonal Commissioner who is in fact so authorized under Section 248, therefore the issuing officer not being in custody of the documents, has sought for the same from the Petitioner.”

Accordingly it allowed the petition and quashed the provisional order dated 28.6.2023 issued under Section 248(1) of BBMP Act 2020, and the confirmation order under Section 248(3) dated 13.7.2023. Also the order dated 17.6.2023 passed in Appeal by the Chief Commissioner.

It clarified that “Liberty is, however, reserved to the Zonal Commissioner to initiate such action as is necessary under Section 248 by categorically stating the deviation if any from the plan which has been sanctioned by the BBMP and available with BBMP.”

The court though disposed off the mater it has posted it for reporting compliance with the aforesaid directions on 3.11.2023.

Appearance: Advocate Mallikarjun M N for Petitioner.

Advocate Pawan Kumar for R1, R2.

Citation: 2023 LiveLaw (Kar) 402

Case Title: Aslam Pasha AND Chief Commissioner & Others Case No: WRIT PETITION NO. 21775 OF 2023

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