Writ Petition No. 52862 of 2015 · The High Court
Case Details
- 1 - NC: 2025:KHC:6508 WP No. 52862 of 2015 C/W WP No. 13256 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE N S SANJAY GOWDA WRIT PETITION NO. 52862 OF 2015 (LB-RES) WRIT PETITION NO. 13256 OF 2019 (LB-RES) C/W IN WP No. 52862/2015 BETWEEN: 1. S PUNDALIKA BHAT S/O U. VASUDEVA BHAT, AGED 81 YEARS PRABHAT COMPOUND, NEAR BUS STAND, BELTHANGADY KASABA VILLAGE, BELTHANGADY TALUK.D.K. DISTRICT BENEFIT OF SR. CITIZNE NOT CLAIMED) (BY SRI. G RAVISHANKAR SHASTRY., ADVOCATE) …PETITIONER AND: 1. TOWN PANCHAYAT BELTHANGADY ,D.K. DISTRICT REP BY ITS CHIEF OFFICER-574214 2. SANTHOM TOWER DAKSHINA KANNNADA RURAL DEVELOPEMENT SOCIETY(REGD), DIOCESE OF BELTHANGADY, JNANANILAYA, BELTHANGADY, D.K. DISTRICT, REP BY ITS SECRETARY-574214 (BY SRI. PRASHANTH.B.K., ADVOCATE FOR R-1; SRI.BRIJESH KALAPPA., ADVOCATE FOR R-2) …RESPONDENTS Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:6508 WP No. 52862 of 2015 C/W WP No. 13256 of 2019 THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE R-1 TO IMPLEMENT THAT ORDER DATED:29.09.2015 PASSED BY THE CHIEF OFFICER, TOWN PANCHAYAT, BELTHANGADY COPY OF WHICH IS PRODUCED AT ANNEXURE-A, ETC. IN WP NO. 13256/2019: BETWEEN: 1. DAKSHINA KANNADA RURAL DEVELOPMENT SOCIETY (REGD), REPRESENTED BY ITS SECRETARY, MR. JOSE AYAMKUDY, S/O JOSEPH V, AGED ABOUT 45 YEARS, R/AT # DIOCESE OF BELTHANGADY, JNANANILAYA, BELTHANGADY, DAKSHINA KANNADA-5714214 (BY SRI. BRIJESH KALAPPA., ADVOCATE) ...PETITIONER AND: 1. STATE OF KARNATAKA REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, M.S.BUILDING, DR. B.R. AMBEDKAR VEEDHI, BENGALURU-560001 2. DEPUTY COMMISSIONER DAKSHINA KANNADA, MANGALORE-575001
Legal Reasoning
3. SRI S PUNDALIKA BHAT S/O U VASUDEVA BHAT, AGED ABOUT 81 YEARS, R/AT PRABHATH COMPOUND, NEAR BUS-STAND, BELTHANGADY KASBA VILLAGE, BELTHANGADY TALUK, - 3 - NC: 2025:KHC:6508 WP No. 52862 of 2015 C/W WP No. 13256 of 2019 DAKSHINA KANNADA-574214 4. TOWN ( PATTANA) PANCHAYATH REPRESENTED BY ITS CHIEF OFFICER, BELTHANGADY, DAKSHINA KANNADA-574214 5. TOWN ( PATTANA) PANCHAYATH REPRESENTED BY ITS PRESIDENT, BELTHANGADY, DAKSHINA KANNADA-574214 (BY SRI. BOPANNA BELLIAPPA., AGA FOR R-1 & R-2; SRI.G.RAVISHANKAR SHASTRY., ADVOCATE FOR R-3; SRI.PRASHANTH.BK., ADVOCATE FOR R-4 & R-5) ...RESPONDENTS THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS AND ISSUE A WRIT, ORDER OR DIRECTION IN THE NATURE OF WRIT OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED 12.02.2019 PASSED BY THE R-1 IS PRODUCED AS ANNEXURE-"Y", ETC. THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE N S SANJAY GOWDA ORAL ORDER 1. In W.P. No.13256/2019 the petitioner questions the order passed by the Deputy Commissioner, who has passed an order purportedly in exercise of powers under Section 322 of the Karnataka Municipalities Act, 1964 (for short, ‘the Act’) in - 4 - NC: 2025:KHC:6508 WP No. 52862 of 2015 C/W WP No. 13256 of 2019 which an order has been passed in the following terms- “CfðzÁgÀgÀ CfðAiÀÄ£ÀÄß ¥ÀÅgÀ¸ÀÌj¹zÉ 3£Éà ¥ÀæwªÁ¢AiÀĪÀgÀÄ ¥ÀqÉPÉÆAqÀ PÀlÖqÀ ¥ÀgÀªÁ¤UÉAiÀÄ°èAiÀÄ 2£Éà ¤§AzÀ£ÉAiÀÄAvÉ vÀªÀÄä d«Ää£À UÀr¬ÄAzÀ PÀlÖqÀ gÀZÀ£ÉAiÀÄ ªÀÄÄA¨sÁUÀ 6«Älgï ªÀÄvÀÄÛ ¸ÀÄvÀÛ®Æ MAzÀÄ «ÄÃlgï SÁ° eÁUÀªÀ£ÀÄß (set back)©qÀĪÀAvÉ ºÁUÀÆ C£À¢üÃPÀÈvÀªÁV ºÉZÀÄѪÀj gÀZÀ£ÉAiÀiÁVgÀĪÀ «¹ÛÃtðzÀ PÀlÖqÀzÀ CA±ÀªÀ£ÀÄß PÉqÀ®Ä PÀ£ÁðlPÀ ¥ÀÅgÀ¸À¨sÉUÀ¼À C¢ü¤AiÀĪÀÄ 1964gÀ ¥ÀæPÀgÀt 187(8)ªÀÄvÀÄÛ 187(9)(ii)gÀ£ÀéAiÀÄ ªÀÄÄSÁå¢üPÁj ¥ÀlÖt ¥ÀAZÁAiÀÄvÀ ¨É¼ÀÛAUÀr EªÀjUÉ MAzÀÄ wAUÀ¼À M¼ÀUÉ PÀæªÀÄ dgÀÄV¸À®Ä DzÉò¹zÉ.” 2. The preamble to the order indicates that respondent No.3 herein had approached the Deputy Commissioner under Section 304 of the Act, but the Deputy Commissioner has exercised his powers under Section 322 of the KMC Act. 3. Learned counsel for the respondent No.3 places on record the petition that respondent No.3 had presented before the Deputy Commissioner, on - 5 - NC: 2025:KHC:6508 WP No. 52862 of 2015 C/W WP No. 13256 of 2019 the basis of which an impugned order was passed. 4. A perusal of the petition would indicate that the main grievance of the petitioner was against the building said to have been constructed by the petitioner illegally. The ultimate prayer made in
Decision
the Writ Petition was as follows- “i. Call for the records and issue a writ, order or direction in the nature of writ of certiorari to quash the impugned order Case No.Mun(2)MIS/CR-95/2017- 18 dated 12.02.2019 passed by respondent No.1 is produced as Annexure-Y.” 5. Sections 304 and 322 of the Act reads as follows- “304. Power of inspection and supervision.— The 1[Director of Municipal Administration]1, Deputy Commissioner, or any officer of the Government authorised by the - 6 - NC: 2025:KHC:6508 WP No. 52862 of 2015 C/W WP No. 13256 of 2019 Government by a general or special order, shall have power,— (a) to enter on and inspect, or cause to be entered on and inspected, any immovable property occupied by any municipal council or any institution under its control or management, or any work in progress under it or under its direction; (b) to call for any extract from the proceedings of any municipal council or of any committee, or for any book or document in the possession of or under the control of a municipal council, and any return, statement, account, or report which he may think fit to require such municipal council to furnish; (c) to require any information or explanation which an auditor can require under sub-section (1) of section 291; (d) to require a municipal council to take into its consideration any objection which appears to him to exist to the doing of anything which is about to be done or is being done by such municipal council or any information - 7 - NC: 2025:KHC:6508 WP No. 52862 of 2015 C/W WP No. 13256 of 2019 which he is able to furnish and which appears to him to necessitate the doing of a certain thing by the municipal council, and to make a written replay to him within a reasonable time stating its reasons for not desisting from doing, or for not doing, such thing. xxxxxxxxxxxxx 322. Revision.—(1) The Director of Municipal Administration may call for and examine the record of any proceedings including orders of assessment and revision of assessment under this Act of any subordinate officer, and after such enquiry as is deemed fit, if he, is satisfied that the order of the subordinate officer is contrary to law and has resulted in a miscarriage of justice, pass such orders thereon as he deems just. Notwithstanding anything in sub- section(1), the Director of Municipal Administration may call for and examine the records of any proceedings of the municipal council including proceedings as appellate authority and if satisfied that any order in such proceedings is - 8 - NC: 2025:KHC:6508 WP No. 52862 of 2015 C/W WP No. 13256 of 2019 contrary to law or is prejudicial to the interests of the Municipal area, pass such orders as he deems just. (3) No order under sub-sections (1) and (2)] shall be made to the prejudice of any party unless he has had an opportunity of being heard.” 6. As could be seen from the above, Section 304 of the Act would be attracted only if any work is being done on behalf of the Municipality. Similarly, Section 322 would be attracted only if the Deputy Commissioner was examining an order passed by a sub-ordinate Officer. 7. As already noticed above, the prayer in the Writ Petition was neither against any work done by the Council nor against any order passed by the Sub-ordinate Officer and the prayer was to hold a detailed enquiry and take an immediate action to stop the work being taken up by the petitioner herein and remove the illegal structure put up by him. - 9 - NC: 2025:KHC:6508 WP No. 52862 of 2015 C/W WP No. 13256 of 2019 8. It is, therefore, obvious that the Deputy Commissioner did not possess any jurisdiction either under Section 304 or under Section 322 of the Act to consider the request of the petitioner which was targeted only against the structure being put up by the petitioner. 9. It is, therefore, clear that the order passed by the Deputy Commissioner being without jurisdiction is accordingly quashed and Writ Petition is, accordingly, allowed. 10. W.P. No.52862/2015 has been preferred by respondent No.3 in W.P. No.13256/2019 seeking for a direction to respondent No.1 to implement the order dated 29.09.2015, a copy of which is produced as Annexure-A, which reads as follows- “£ÉÆÃnøÀÄ «µÀAiÀÄ: ¸ÀªÉð£ÀA§æ 84/1gÀ°è ¤«Äð¸ÀÄwÛgÀĪÀ PÀlÖqÀzÀ ¸ÀÄvÀÛ ¸Émï ¨ÁåPï ©qÀzÉ PÀlÖqÀ ¤ªÀiÁðt ªÀiÁqÀÄwÛgÀĪÀ PÀÄjvÀÄ - 10 - NC: 2025:KHC:6508 WP No. 52862 of 2015 C/W WP No. 13256 of 2019 G¯ÉèÃR: 1) PÀlÖqÀ ¤ªÀiÁðt ¯Éʸɣïì £ÀA§æ 85/14-15 29-01- 2015. 2) J¸ï. ¥ÀÄAqÀ°ÃPÀ ¨sÀmï, §¸ï ¤¯ÁÝt §½, ¨É¼ÀÛAUÀr EªÀgÀ Cfð ¢£ÁAPÀ 24-09-2015, ____****___ ªÉÄð£À «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ, G¯ÉèÃR (1)gÀAvÉ F PÀbÉÃj¬ÄAzÀ vÁªÀÅ ¯Éʸɣïì ¥ÀqÉzÀÄ PÀlÖqÀ ¤ªÀiÁðt ªÀiÁqÀÄwÛgÀĪÀÅzÀÄ ¸ÀjAiÀĵÉÖà DzÀgÉ ¸À¢æ PÀlÖqÀ ¤ªÀiÁðtzÀ §UÉÎ ¤ÃqÀ¯ÁzÀ ¯Éʸɣïì£À°è£À PÀæ.¸ÀA. 2gÀ ±ÀvÀðzÀAvÉ, ¸Émï ¨ÁåPï ©nÖgÀĪÀÅ¢®èªÉAzÀÄ G¯ÉèÃR (2)gÀAvÉ CfðzÁgÀgÁzÀ J¸ï. ¥ÀÅAqÀ°ÃPÀ ¨s Àmï gÀªÀgÀÄ F PÀbÉÃjUÉ Cfð ¸À°è¹gÀÄvÁÛgÉ. ¸À¢æ zÀÆgÀÄ CfðAiÀÄ ªÉÄÃgÉUÉ F PÀbÉÃjAiÀÄ QjAiÀÄ C©üAiÀÄAvÀgÀgÀÄ ¸ÀܼÀ ¥Àj²Ã®£É £ÀqɹgÀÄvÁÛgÉ ºÁUÀÆ ¸Émï¨ÁåPï ¤AiÀĪÀÄ ¨Á»gÀªÁVgÀĪÀÅzÀ£ÀÄß UÀªÀĤ¹ ªÀgÀ¢ ªÀiÁrgÀÄvÁÛgÉ. DzÀÄzÀjAzÀ ¤ªÀÄä ¤ªÀiÁðt PÁªÀÄUÁjAiÀÄ£ÀÄß vÀPÀët ¸ÀÜVvÀUÉƽ¸ÀĪÀgÉà F ªÀÄÆ®PÀ ¸ÀÆa¹zÉ. vÀ¦àzÀ°è ¥ÀÅgÀ¸À¨sÁ ¤AiÀĪÀÄUÀ¼À£ÀéAiÀÄ PÀæªÀÄ dgÀÄV¸À¯ÁUÀĪÀÅzÀÄ.” 11. As could be seen from Annexure-A, it is a notice issued to the petitioner in W.P. No.13256/2019 calling upon him to stop the work immediately, failing which action would be taken by the Municipal Council in accordance with the Rules. - 11 - NC: 2025:KHC:6508 WP No. 52862 of 2015 C/W WP No. 13256 of 2019 12. This Court during the pendency of this Writ Petition, passed an order on 16.06.2022 in the following terms- “Learned counsel for the respondent No.1 submits that the construction undertaken by respondent No.2 is brought in line with the plan which was sanctioned. This is, however, disputed by counsel for petitioner. For the sake of clarity, respondent no.1 is directed to visit the property of respondent No.2 and thereafter file an affidavit as to whether the construction put up by respondent No.2 is in accordance with the plan sanctioned. Said affidavit shall be filed by 30.06.2022, failing which the Chief Officer of respondent No.1 shall remain present before the Court.” 13. This Court also passed another order on 15.12.2023 in the following terms- “1. Learned counsel for respondent No.1 submits that inspection is yet to take place. He seeks for a fresh date to be fixed for the inspection to be carried out. - 12 - NC: 2025:KHC:6508 WP No. 52862 of 2015 C/W WP No. 13256 of 2019 2. Learned counsel for respondent No.2 submits that the extent of land would also be required to be determined for which purpose the ADLR would have to be issued necessary directions to carry out a survey of the land. Learned counsel for the petitioner also concurs with the same. 3. The jurisdictional ADLR is directed to carry out measurement of the land at the same time as respondent No.1 is carrying out the inspection as directed on 18.11.2023. The date of the inspection and survey is rescheduled to commencing from 10.30 am on 4.1.2024 and report to be submitted on 23.1.2024 after serving copy thereof on learned counsel for the petitioner and counsel for respondent No.2. 4. Objections, if any, to the said report to be filed on or before 2.2.2024. 5. Re-list on 8.2.2024. 6. In WP No.52862/2015, learned counsel for the petitioner is directed to furnish two sets of the petition copies along with all annexures on learned HCGP.” 14. Pursuant to the said orders, reports have been filed by the Municipal Council. It would, - 13 - NC: 2025:KHC:6508 WP No. 52862 of 2015 C/W WP No. 13256 of 2019 however, be suffice to consider the second report that has been filed, which is dated 02.02.2024. 15. These reports indicate that there have been deviations by the petitioner in W.P. No.13256/2019 from the sanctioned plan. 16. Since a report has now been filed indicating that there is a deviation from the sanctioned plan, it is obvious that the authorities cannot let the matter lie and they would have to necessarily take action in accordance with law in respect of the deviations which has already been indicated in Annexure-A. 17. However, learned counsel appearing for the petitioner in W.P. No.13256/2019 seeks to contend that the petitioner is being levied twice the property tax, and therefore, the regularization, if any, stands regularized. - 14 - NC: 2025:KHC:6508 WP No. 52862 of 2015 C/W WP No. 13256 of 2019 18. In my view, this submission cannot be accepted since mere levy of a property tax as penalty for constructing illegal building will not lead to an inference that the building itself is regularized . In fact, the statutory provision made in this regard clarifies this position without any doubt. 19. Learned counsel for the petitioner in W.P. No.13256/2019 also makes his submission that the essential dispute between him and the petitioner in W.P. No.52862/2015 is regarding the survey to which the petitioner deliberately chose to stay away. He, therefore, submits that there is no illegality in the construction being put up by him. 20. In my view, this is a contention which cannot be considered in these proceedings since in these proceedings the consideration is limited to the deviation from the construction which was - 15 - NC: 2025:KHC:6508 WP No. 52862 of 2015 C/W WP No. 13256 of 2019 permanently constructed in accordance with the sanctioned plan. 21. Learned counsel also submits that the irregularities pointed out were, in fact, rectified and the same is clear as per the inspection report dated 21.01.2016. In my view, this argument cannot be accepted, in view of the two reports that have been filed before this Court pursuant to the orders passed by this Court. 22. As already stated above, since there is a report placed on record by the Authorities that there is a deviation from the sanctioned plan, it becomes necessary to direct the respondents to take appropriate action in accordance with law against that portion of the structure which is illegal. Writ Petition is, accordingly, disposed of. - 16 - NC: 2025:KHC:6508 WP No. 52862 of 2015 C/W WP No. 13256 of 2019 23. It is needless to state that the Authorities will have to take steps to implement the order that is now passed within a period of three months from the date of receipt of a copy of this order. 24. In view of the disposal of the petition, all pending interlocutory applications, if any, stand disposed of. Sd/- (N S SANJAY GOWDA) JUDGE HNM List No.: 1 Sl No.: 35