Writ Petition No. 27277 of 2024 · The High Court
Case Details
- 1 - NC: 2025:KHC:13948 WP No. 27277 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV WRIT PETITION NO. 27277 OF 2024 (LB-RES) BETWEEN: 1. BRAHMASHRI NARAYANA GURU SWAMI BILLAVARA SEVA CHARITABLE TRUST (R), NEAR SUBHAS ROAD, UCHILA POST, KAPU TALUK, UDUPI-574 117, REPRESENTED BY ITS PRESIDENT, MR. KRISHNAPPA K. KARKERA, AGED ABOUT 58 YEARS, S/O. KORAGA POOJARY. (BY SRI. I. THARANATH POOJARY, SENIOR COUNSEL FOR SMT. VEENA T.N., ADVOCATE) … PETITIONER Digitally signed by VIJAYA P Location: HIGH COURT OF KARNATAKA AND: 1. EXECUTIVE OFFICER TALUK PANCHAYATH, KAPU, UDUPI DISTRICT-574 117. 2. PANCHAYATH DEVELOPMENT OFFICER BADA GRAMA PANCHAYATH, UCHILA POST, KAPU TALUK, UDUPI-574 117. 3. THE COMMISSIONER KAPU PLANNING AUTHORITY, 1ST FLOOR, MUNICIPALITY BUILDING, KAPU, UDUPI-574 106. - 2 - NC: 2025:KHC:13948 WP No. 27277 of 2024 4. ASSISTANT COMMISSIONER AND COMPETENT AUTHORITY SUB-DIVISIONAL OFFICE, KUNDAPUR, SUB-DIVISIONAL OFFICE, UDUPI DISTRICT-576 201. 5. BADA GRAMA PANCHAYATH BADA VILLAGE, UCHILA POST, KAPUT TALUK, UDUPI-574 117, REPRESENTED BY ITS PRESIDENT.
Legal Reasoning
6. SRI. SUDHAKARA KOTIAN AGED ABOUT 55 YEARS, R/AT NO. 1-51, KUDDU POOJARY HOUSE, NEAR NARAYANA GURU SABHA BHAVANA, BADA, KAPU TALUK, UDUPI DISTRICT-574 117. … RESPONDENTS (BY SMT. ASHOK NARAYAN NAYAK, ADVOCATE FOR R1; SRI A.S. MAHESH, ADVOCATE FOR R2 & R5; R3 - SERVED AND UNREPRESENTED; SRI BOPANNA BELLIAPPA, AGA FOR R4; SRI JAGADISH BALIGA, ADVOCATE FOR R6) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD. 23.09.2024 PASSED BY THE R-1 MADE IN NO. SA.THA.PAM.KA/MAILMANAVI/2/2023-24 AT ANNEXURE-A AND ETC. PRODUCED THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S SUNIL DUTT YADAV - 3 - NC: 2025:KHC:13948 WP No. 27277 of 2024 ORAL ORDER The petitioner has called in question the correctness of the order at Annexure-'A' dated 23.09.2024 passed by respondent No.1-Executive Officer, Taluk Panchayat, Udupi District. The order at Annexure-'A' is the order passed in an appeal filed by respondent No.6 against the resolution dated 10.08.2021 cancelling the licence of respondent No.6. Incidentally, the appeal filed under Section 64(5) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 ('the Act' for short) also calls in question the notice dated 15.06.2022. 2. It is the case of the petitioner that the property of petitioner is abutting the property of respondent No.6 and by virtue of construction put up by respondent No.6, the petitioner's right to enjoy the property with adequate, light, air and right of way has been restricted and that the respondent No.6 is entitled to put up the construction strictly in accordance with law. It is further case of the petitioner that the order at Annexure-'A' goes beyond the - 4 - NC: 2025:KHC:13948 WP No. 27277 of 2024 scope of appeal and has in effect injuncted respondent Nos.2 and 5 from taking any action insofar as illegalities in the construction are concerned. 3. It is further contention of learned Senior Counsel Sri I. Tharanath Poojary appearing on behalf of petitioner that the power of local Authority to take action under Section 64 of the Act for non-compliance with the conditions imposed while granting of licence cannot be abridged by virtue of the order at Annexure-'A'. 4. Sri A.S. Mahesh, learned counsel appearing for respondent Nos.2 and 5 would submit that the order of Appellate Authority has taken note of the contentions of respondent No.5 and needless to state that the order at Annexure-'A' will tie the hands of respondent Nos.2 and 5 insofar as the illegalities in compliance with the conditions imposed while granting the licence. 5. Sri Ashok Narayan Nayak, learned counsel appearing on behalf of respondent No.1 is unable to - 5 - NC: 2025:KHC:13948 WP No. 27277 of 2024 controvert the contention that the Appellate Authority has exceeded its power while making the observations and recording the findings. 6. Learned counsel appearing for respondent No.6 would submit that the appeal was in effect as regards revocation of licence when construction is put up. 7. Heard both sides. Perused the order at Annexure-'A'. 8. It is to be noticed that the findings in the order at Annexure-'A' is to the effect that the grant of licence was done in an improper manner, however, as respondent No.5 has entered into possession, the question of rejection of licence does not arise and accordingly has set aside the resolution revoking the licence as well as the notice at Annexure-'B' dated 04.12.2023, whereby the respondent No.6 was called upon to remove the deviation. 9. It must be noticed that, no doubt, once licence is granted and construction is put up, the question of - 6 - NC: 2025:KHC:13948 WP No. 27277 of 2024 undoing the construction by revoking the licence after putting up the construction does not arise and accordingly, the order at Annexure-'A' dated 23.09.2024 is to be read down to be an order prohibiting the revocation of licence once the construction is put up. 10. It is the case of the petitioner that the action to proceed against violation of conditions imposed while granting licence cannot be prohibited by mere allowing of the appeal by order at Annexure-'A' dated 23.09.2024. 11. Said contention derives force from the power conferred under Section 64 upon respondent Nos.2 and 5. 12. Section 64(3) of the Act reads as hereunder:- "64. Regulation of the erection of buildings.- xxx xxx (1) (2) (3) Whenever any building is erected, added to or reconstructed without such permission or in any manner contrary to the rules prescribed under sub-section (1) or any conditions imposed by the permission granted, the Grama Panchayat may, whether any action is taken or not against such person under Section 298,- (a) direct that the building, alteration or addition be stopped; or (b) by written notice require within a reasonable period to be specified therein, such building, alteration or - 7 - NC: 2025:KHC:13948 WP No. 27277 of 2024 addition to be altered or demolished as it may deem necessary for the promotion of public health or prevention of danger to life or property. 13. It must be noticed that licence for first floor was granted, subject to certain conditions which is enclosed at Annexure-'C'. The action by the Authorities was initiated contemporaneously with the construction of respondent No.6. The respondent No.6, who has carried out construction is required to have complied with the conditions imposed while granting the licence at Annexure-'C'. For violation of such conditions, under Section 64(3)(b), notice could be issued by respondent Nos.2 and 5. The notice at Annexure-'B' is to be construed to be the notice issued under Section 64(3)(b). The respondent Nos.2 and 5 are at liberty to issue Corrigendum notice to Annexure-'B' raising other grounds of violations, if any. Consequent upon such notice issued, the respondent No.6 to make out his reply within two weeks from date of release of the certified copy of the order as a reply to Annexure-'B' and within the period of two weeks as regards any Corrigendum notice, if issued by - 8 - NC: 2025:KHC:13948 WP No. 27277 of 2024 respondent Nos.2 and 5. Needless to state that respondent No.2 and 5 to ensure that the conditions subject to which licence were issued is to be strictly enforced. 14. The order of the Appellate Authority at Annexure-'A' dated 23.09.2024 is also set aside insofar as it sets aside the notice at Annexure-'B'. Needless to state that respondent Nos.2 and 5 are at liberty to proceed pursuant to Annexure-'B' and subject to the observations made hereinabove to ensure that building is constructed in terms of the licence and the conditions imposed are adhered to. Further, respondent Nos.2 and 5 to expedite the process and endeavour to complete the proceedings within a period not later than six months from today.
Decision
Accordingly, the petition is disposed off. SD/- (S SUNIL DUTT YADAV) JUDGE VGR