Writ Petition No. 4374 of 2018 · The High Court
Case Details
- 1 - NC: 2025:KHC:19477 WP No. 4374 of 2018 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 4374 OF 2018 (LB-RES) BETWEEN: SRI. P. RATHNAKAR SHENOY S/O LATE P. JANARDHAN SHENOY AGED ABOUT 85 YEARS R/AT NEAR SIDHI VINAYAKA TEMPLE BIKARNAKATTE, MANGALURU-575 005. (BY SRI. PUNDIKAI ISHWARA BHAT, ADVOCATE) AND: 1. THE COMMISSIONER MANGALURU CITY CORPORATION LALBAGH, MANGALURU-575 001. …PETITIONER Digitally signed by AL BHAGYA Location: HIGH COURT OF KARNATAKA 2. SRI. JNANESH S/O SRI. ASHOK AGED ABOUT 46 YEARS R/AT BIKARNAKATTE MANGALURU-575 005. …RESPONDENTS (BY SRI. HAREESH BHANDARY .T, ADVOCATE FOR R1; R2 SERVED AND UNREPRESENTED) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 30.06.2017 PASSED BY THE III ADDITIONAL - 2 - NC: 2025:KHC:19477 WP No. 4374 of 2018 HC-KAR DISTRICT AND SESSION JUDGE, MANGALURU IN MISC. CASE NO.101/2012 (ANNEXURE-A) AND ETC. THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM ORAL ORDER The captioned petition is filed assailing the order of the appellate authority/III Additional District and Sessions Judge, Mangaluru in Misc. Case No.101/2012 and also the impugned order of demolition dated 14.09.2012 passed by respondent No.1/Commissioner, City Corporation, Mangaluru. 2. Heard the learned counsel for the petitioner. The counsel appearing for respondent No.1 has filed a memo thereby retiring from the case. Respondent No.2/complainant though served has not chosen to contest the petition. 3. The short point that would arise for consideration before this Court is: - 3 - NC: 2025:KHC:19477 WP No. 4374 of 2018 HC-KAR " Whether respondent No.1 was justified in ordering demolition of unauthorized building measuring about 3.6 meters in width and 6.20 meters in length in Door No.3-11-979 situated in 79 of Padavu Village, within the limits of Mangaluru City Corporation." 4. The official records produced before this Court clearly establish that the petitioner is the owner of a residential property bearing Door Nos. 3-E-11-979 and 3- E-11-979A, situated in Survey No. 64/7 of Padavu Village, Mangaluru Taluk. The ownership of the said property flows from a registered partition deed dated 06.03.1965, executed among the members of the petitioner’s family. Under the terms of the said partition deed, the petitioner was allotted a portion of land measuring 22 cents in the aforementioned survey number. Pursuant to the said allotment, the petitioner constructed a residential house over the said property in the year 1966, after obtaining the requisite building licence from the competent municipal authority, i.e., the then Mangaluru City - 4 - NC: 2025:KHC:19477 WP No. 4374 of 2018 HC-KAR Municipality. The building licence granted in favour of the petitioner is placed on record at Annexure-C, which is dated 12.07.1966. The said construction was in accordance with the sanctioned plan and permission granted for a residential building, and the said structure stood undisputed for several decades. 5. The records further reveal that the said residential property is abutting the National Highway No.17. In the year 2006, the National Highway Authorities undertook a road widening project as part of infrastructure development, during which a portion of the petitioner’s land was acquired. In the process, a total extent of 81 square meters of the petitioner’s property was acquired, and compensation was duly paid to the petitioner. It is significant to note that the acquired portion included a part of the residential structure originally constructed by the petitioner. As a consequence of the partial demolition resulting from the acquisition, the structural integrity of the petitioner’s residential house was affected. The - 5 - NC: 2025:KHC:19477 WP No. 4374 of 2018 HC-KAR petitioner, therefore, claims that he was compelled by necessity to undertake repair works to restore the building and ensure its safety and usability. However, based on a complaint lodged by respondent No.2, it was alleged that the petitioner, under the guise of carrying out repairs, had in fact reconstructed a portion of the building and converted it into commercial shops, which he had thereafter let out for commercial use. Acting upon this complaint, a notice was issued to the petitioner by respondent No.1 under the provisions of the Karnataka Municipal Corporations Act. The petitioner submitted a detailed reply to the said notice. However, upon conducting a local inspection and enquiry, the competent authority came to the conclusion that the petitioner had undertaken reconstruction and change of user of the premises for commercial purposes without obtaining prior permission or building licence from the Mangaluru City Corporation. Consequently, respondent No.1 passed an order directing the demolition of the unauthorised portion - 6 - NC: 2025:KHC:19477 WP No. 4374 of 2018 HC-KAR of the construction measuring 3.6 meters x 6.2 meters situated in premises bearing Door No.3-E-11-979. 6. A careful examination of paragraph 9 of the writ petition discloses that the petitioner has candidly admitted that he had been granted a building licence in 1966 exclusively for the construction of a residential house. It is evident that the original building constructed by the petitioner was in consonance with the sanctioned residential plan and the licence issued, as evidenced by Annexure-C. However, while responding to the notice issued under Section 321 of the Karnataka Municipal Corporations Act, the petitioner unequivocally admitted that the portion of the structure in question had been constructed for commercial purposes. Notably, in the course of responding to the said notice, the petitioner did not produce any sanctioned plan or licence from the competent authority permitting construction or alteration for commercial use. Although the petitioner attempted to justify the structure by asserting that only repairs were - 7 - NC: 2025:KHC:19477 WP No. 4374 of 2018 HC-KAR carried out, the inspection conducted by the Corporation officials revealed that a fresh structure intended for commercial use had been put up, which amounted to unauthorized construction. This factual finding, coupled with the petitioner’s own categorical admission in his reply to the statutory notice, substantially undermines the petitioner’s defence. In this context, this Court considers it pertinent to reproduce the relevant portions of the unnumbered paragraphs of the petitioner’s reply, which
Legal Reasoning
clinch the core issue in controversy between the parties. "Last year I had carried out repairs of 6 shop premises bearing Door No.3-11-984 to 3-11-988 but I could not continue the repair work due to forthcoming of rainy season. This year I started to complete the unfinished work. Since the old building was made up of mud wall, I have plastered the walls by cement. I have been in possession of Door No. 3-11- 979 and 3-11-991 which are the portions of the building retained with me after demolition of the portion of the building while widening the road. - 8 - NC: 2025:KHC:19477 WP No. 4374 of 2018 HC-KAR Two rooms in the 1ST floor and a room in the ground floor of the building bearing Door No.3-11- 979 were acquired by the National Highway Authorities. The remaining two rooms situated in the building are not sufficient for our accommodation. Therefore Door No.3-11-980 was not let out and remained vacant for the last four years. Since we started to live in the house and to augment income for our livelihood during my retired life I have decided to utilize Door No.3-11-979 for commercial purposes. I am 77 years old. Earlier I was doing business and I am a retired person. Since I have no income and in order to generate income during my retired life I have decided to let out the building. As such I may be permitted to complete the repair work of building." (Emphasis supplied by me) 7. A detailed reading of the second unnumbered paragraph in the petitioner’s reply to the notice issued under Section 321 of the Karnataka Municipal Corporations Act decisively clinches the controversy involved in the present case. The said reply makes it unequivocally clear - 9 - NC: 2025:KHC:19477 WP No. 4374 of 2018 HC-KAR that under the pretext of carrying out mere repairs, the petitioner has, in fact, reconstructed the existing residential building and converted it into commercial shops. In categorical terms, the petitioner admits that while executing the so-called repairs, he has constructed six commercial shop units within the premises originally sanctioned as a residential building. Further, the petitioner attempts to justify this deviation by stating that he is a retired person aged 77 years, with no independent source of income, and therefore, to support himself during his old age, he has constructed and let out these commercial shops as a means of livelihood. While such an explanation may elicit sympathy, it does not in any way condone or legalize the unauthorized change in land use and building structure. The appellate authority has thoroughly examined these factual aspects and has rightly concluded that the petitioner has misused the permission under the guise of repairs. The petitioner’s own admissions have been adverted to in detail in the appellate order. In fact, - 10 - NC: 2025:KHC:19477 WP No. 4374 of 2018 HC-KAR the learned District Judge, in the order passed in Misc. Appeal No.101/2012, while affirming the order of the respondent-authority, has placed significant reliance on these admissions and has rightly dismissed the appeal, thereby affirming that the construction of the commercial structure was without sanction and in clear breach of municipal regulations. 8. Upon an independent examination of the impugned order passed by the respondent-authority under Section 321 of the Karnataka Municipal Corporations Act, this Court finds no legal infirmity or procedural irregularity warranting interference. On the contrary, the material placed on record, including the spot inspection report and the admissions made by the petitioner, clearly establish that a residential building has been unlawfully converted into a commercial structure. It is well settled in law that permissions granted for one specific user, particularly residential, cannot be altered or violated without securing due permission from the competent planning authority. In - 11 - NC: 2025:KHC:19477 WP No. 4374 of 2018 HC-KAR the present case, the petitioner has brazenly undertaken commercial construction, raised six shop premises, and let them out for rental income,all under the pretext of carrying out minor repairs. Such a blatant misuse of a residential licence cannot be condoned. Both the respondent-authority and the appellate authority have appropriately exercised their jurisdiction in issuing the demolition order and confirming the same. The spot inspection conducted by the municipal officials, the findings thereof, and the petitioner's own admissions leave no room for doubt. Accordingly, this Court is of the view that no leniency or equitable indulgence can be shown to the petitioner, as the unauthorized construction constitutes a clear violation of the provisions of the Act
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and established building norms. 9. The reliance placed by the learned counsel for the petitioner on the decision rendered in M.P. Ramachandrachar v. Commissioner, Mysore City - 12 - NC: 2025:KHC:19477 WP No. 4374 of 2018 HC-KAR Corporation, Mysore1 is wholly misplaced and inapplicable to the facts and circumstances of the present case. In the said decision, the factual matrix pertained to a situation where the owner had merely replaced the tiled roofing with RCC roofing, without altering the structural layout or user of the building. The Hon’ble Court in that case held that such a change constituted repairs and did not amount to alteration or addition within the meaning of Section 321 of the Act. The ratio of that decision is about limited and non-invasive nature of the work carried out. In stark contrast, the present case involves not a simple replacement or reinforcement of existing structures, but a fundamental and unauthorized transformation of a residential building into a commercial complex comprising six distinct shop units. Moreover, the petitioner himself has openly admitted that these shops were constructed and let out solely for the purpose of generating rental income during his post-retirement life. Such a 1 1996(2) Karl.L.J.312 - 13 - NC: 2025:KHC:19477 WP No. 4374 of 2018 HC-KAR transformation of land use and structural character, in complete disregard of municipal regulations, cannot be equated to mere repairs as envisaged under the Act. Therefore, even on the basis of the legal principles enunciated in the said judgment, the petitioner is not entitled to any relief or indulgence from this Court. Accordingly, the point formulated above is answered in the affirmative. 10. For the foregoing reasons, this Court is of the view that the writ petition is devoid of merits and accordingly stands dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE ALB List No.: 1 Sl No.: 39