Karnataka High Court
G Shanthappa & Sons vs Harihara City Municipal on 2 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:24765
RSA No. 1752 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 1752 OF 2015 (INJ)
BETWEEN:
G. SHANTHAPPA & SONS,
A PARTNERSHIP FIRM,
HAVING ADDRESS AT
TEMPLE ROAD, HARIHARA,
DAVANAGERE DISTRICT - 577 601,
REPRESENTED BY ITS PARTNER,
G.B. SHANTHARAJ.
...APPELLANT
(BY SRI. VINAYA KEERTHY M, ADVOCATE)
AND:
HARIHARA CITY MUNICIPAL
COUNCIL, HARIHARA,
DAVANAGERE DISTRICT - 577 601,
Digitally signed REPRESENTED BY ITS COMMISSIONER.
by ...RESPONDENT
NARAYANAPPA (BY SRI. B.K. MANJUNATH, ADVOCATE)
LAKSHMAMMA
Location: HIGH THIS RSA IS FILED UNDER SEC.100 R/W ORDER XLII OF CPC.,
COURT OF
AGAINST THE JUDGMENT AND DECREE DATED 30.09.2015 PASSED
KARNATAKA
IN R.A NO.42/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HARIHAR, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 26.03.2014 PASSED IN O.S
NO.165/2009 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC.,
HARIHAR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:24765
RSA No. 1752 of 2015
JUDGMENT
1. The appellant/ plaintiff is before the Trial Court is before this Court seeking for the following relief:
"WHEREFORE, it is prayed that this Hon'ble Court may be pleased to call for the records and set aside the impugned order Dt. 30.09.2015 passed by the Learned Sr. Civil Judge, Harihara in RA No. 42/14, and confirm the judgement & decree Dt. 26.03.2014 passed by the Learned Prl. Civil Judge & JMFC, Harihara in OS 165/09, in the interest of justice & equity."
2. The plaintiff had filed a suit in O.S.No.165/2009 before the Prl. Civil Judge and JMFC, Harihara seeking for an order of permanent injunction restraining the defendant / City Municipal Council (CMC), Harihara from demolishing the suit schedule property belonging to the plaintiff without following the due process of law.
3. The said suit came to be decreed vide judgment dated 26.03.2014 restraining the defendant from in any manner demolishing the building of the suit schedule property without following due process of law and without issuance of trial notice, as also without complying with the procedure contemplated under the Karnataka Municipalities Act, 1964.
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NC: 2024:KHC:24765 RSA No. 1752 of 2015
4. The City Municipal Council unfortunately challenged the same by filing a Regular Appeal in R.A.No.42/2014, which surprisingly came to be allowed by judgment dated 30.09.2015 and the judgment of the Trial Court came to be set aside. While coming to the said conclusion, the First Appellate Court observed that the plaintiff was required to follow the law and if he has not followed the applicable building bye-laws, the construction is required to be demolished. It is challenging the same, that the plaintiff is before this Court.
5. The above appeal has been admitted on 05.06.2024 to answer the following substantial question of law:
i) Whether the Municipal authority can carry out demolition of the building alleging that there is an encroachment without issuing any statutory notice to the person in possession of a construction in such alleged encroached area?
6. When the matter was taken for hearing on 05.06.2024, counsel for the CMC was directed to enquire and make his submission as to whether any steps have been taken in terms of the applicable law by issuing notice or otherwise and whether the demolition has been carried out or not.
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NC: 2024:KHC:24765 RSA No. 1752 of 2015
7. Today, a submission was made by Sri. B.M.Akshaya, learned counsel appearing for the respondent / CMC that no notice has been issued and in view of the judgment which has been passed by the Trial Court and the above appeal pending before this Court, no action has been taken for demolition.
8. Whenever there is a violation of any building bye-laws, and construction has been put up illegally, and/or any land has been encroached upon by any private party, the encroachment being on public land or otherwise, it is required for the municipal authority to take steps in accordance with the law in a manner provided under the law so as to give effect to the Rule of the law since the Municipal authority cannot take the law into its own hands and demolish any construction which has been put up without giving an opportunity to a citizen to make known his defence. It may be that such a citizen has a defence or does not have a defence, but an opportunity is definitely required to be granted to a citizen to offer an explanation or a defence, which has to be considered by -5- NC: 2024:KHC:24765 RSA No. 1752 of 2015 the authorities and a required order to be passed thereon.
9. In order to do so, it would be required for a show cause notice to be issued by the Municipal authority categorically detailing the violation, if any, committed by the citizen, encroachment, if any, committed by a citizen enclosing therewith necessary sketch / plan of the violation to enable the citizen to reply to it effectively. While furnishing such a sketch / plan, it would also be advisable that the measurement and inspection be carried out in the presence of the person who is alleged to have violated the building bye-laws and/or encroached on public property.
10. In the present case, Sri. Vinaya Keerthy M., learned counsel for the appellant, is directed to secure and furnish the mobile number, WhatsApp number, and email ID of the appellant, if available, to the learned counsel for the respondent.
11. A notice is directed to be served by the respondent by way of registered post, WhatsApp, and e-mail ID on the -6- NC: 2024:KHC:24765 RSA No. 1752 of 2015 appellant, fixing the date for inspection and measurement. If on that date, the appellant chooses not to be present for the inspection, the inspection could ahead and a report could be submitted along with the notice if necessitated after the inspection being carried out.
12. In that view of the matter, I answer the substantial question of law raised by holding that the Municipal authority cannot carry out any demolition of any building alleging that there is an encroachment without issuing a statutory notice to the person in possession of the construction in the alleged encroached areas. It would but be required for the Municipal authority to issue a notice considering the defence raised by the concerned affected persons, thereafter pass necessary orders and act in accordance with law by following the due process prescribed under the Municipalities Act, 1964. In view of my findings, I pass the following:
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NC: 2024:KHC:24765 RSA No. 1752 of 2015 ::O R D E R::
(a) The judgment passed by the Sr. Civil Judge, Harihara dated 30.09.2014 in R.A.No.42/2014 is set aside and the judgment and decree dated 26.03.2014 passed by the Prl. Civil Judge & JMFC, Harihara in O.S.No.165/2009 is confirmed.
(b) Liberty is reserved to the Municipality to issue notice as observed herein above.
(c) Needless to say, any challenge for the said notice being a statutory notice cannot be made before the Civil Court but would have to be made before the Constitutional Court.
In view of dismissal of the main appeal, interlocutory applications do not survive for consideration and the same are disposed of.
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JUDGE GJM List No.: 1 Sl No.: 25 CT: BHK