Aruna Jain W/O Kantilal Jain vs Ballari City Corporation
2021 Latest Caselaw 6863 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH
     DATED THIS THE 20TH DAY OF DECEMBER 2021
                              BEFORE
     THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
              W.P.No.138902/2020 (LB-RES)
Between:
Aruna Jain W/o. Kantilal Jain,
Age 63 years, R/at Plot No.C/29,
Patel Nagar, 4th Cross, Ballari-583101.            ... Petitioner
(By Smt. V.Vidya, Advocate)

And:
1.     Ballari City Corporation, Ballari,
       Rep. by its Commissioner, Ballari-583101.
2.     The Commissioner,
       Ballari City Corporation, Ballari-583101.
3.     The Executive Engineer,
       Ballari City Corporation, Ballari-583101.
4.     The Assistant Executive Engineer,
       Ballari City Corporation, Ballari-583101.
5.     N. Chandashekar Reddy,
       S/o. Late Shri Nagireddy Basappa,
       Age 62 year, R/at Plot No.C-30,
       Door No.49, 4th Cross, Patel Nagar,
       Ballari-583101.                             ... Respondents
(By Shri C.V. Angadi, Advocate for R1 to R4;
 Shri Harsh Desai, Advocate for R5)
       This writ petition is filed under Articles 226 & 227 of the
Constitution of India praying to issue a writ of certiorari or any
other appropriate writ, order or direction quashing the impugned
order passed by R2 in No.Sum.Manapaa/Taam/ Ka.Pa/B.A.
No.194.2014-15/1397, dated 31.01.2017/ 03.02.2017 found at
Annexure-N and also the impugned judgment and order passed by
the learned II-Addl. District and Sessions Judge in Misc.Appeal
No.3/2018, dated 31.01.2020 found at Annexure-S allow this writ
petition with costs.
                                 :2:



       This petition coming on for preliminary hearing B-Group, this
day, the Court made the following:

                              ORDER

1. In a proceedings arising out of an order passed

under Section 321 of KMC Act, this Court passed the following

order:

"14. As could be seen from the Annexures-F & H, the provisional order dated 30.12.2014 and the final confirmation order dated 08.10.2015, the provisional order does not reflect about fourth floor, it only states that certain constructions made by the petitioner are contrary to the approved plan. Very strangely new things have been inserted in the impugned order that the petitioner is constructing cellar floor and fourth floor on the basis of the report submitted by the Junior Engineer on 26.08.2015. If that is so, the Commissioner should have held proper enquiry after giving notice to the petitioner as well as the persons concerned including the 5th respondent. The 2nd respondent - Commissioner without verifying the entire materials on record, the sanction plan and also without considering the application filed by the petitioner on 29.01.2015 for modification of sanction plan, has proceeded to pass the impugned order. It clearly depicts that the impugned order is contrary to the provisions of Section 321(3) of the Karnataka Municipal Corporation Act.

2. As could be seen from the above, this Court

categorically stated that the Commissioner should have held a

proper enquiry after giving notice to the petitioner as well as

the fifth respondent and a specific direction was issued to the

second respondent-Commissioner to verify the entire

materials on record and also consider the application filed by

the petitioner on 29.01.2015 for modification of the sanction

plan.

3. Despite the specific direction passed by this Court,

the Commissioner has merely passed an order upholding the

proceedings under Section 321 of the Act and this order has

also been confirmed in appeal.

4. In response to a notice under Section 321 of the

Act, when a contention is taken that an application for

modification of sanction plan was made and was pending

consideration, it would be imperative for the licencing

authority to consider the application for modification first. If

the petitioner is eligible for modification of the plan and

thereby bring his construction within the permitted

parameters of the byelaw, obviously, the building owner

would stand to gain. The respondents without considering this

application have come to the conclusion that the building is

required to be demolished.

5. I am therefore of the view that the impugned

orders cannot be sustained and the same are quashed.

6. The Corporation is directed to consider the

application for modification of the sanction plan said to have

been filed by the petitioner on 29.01.2015 and pass

appropriate orders on the said application.

7. If it is found that the petitioner would not be

entitle for the modification of the sanction plan, the

Corporation would be at liberty to initiate proceedings under

Section 321 of the Act and take necessary action in

accordance with law.

Subject to the above, the writ petition is disposed of.

The Corporation is directed to consider the application of

the petitioner for modification, as stated above, within a

period of three months from the date of receipt of a copy of

this orer.

In view of the disposal of the writ petition, I.A.

No.1/2021 does not survive for consideration.

Sd/-

JUDGE Vnp*