Karnataka High Court

The Commissioner, vs Mrs. Metilda Celestine Madtha, on 26 May, 2021

Author: Jyoti Mulimani

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 26TH DAY OF MAY, 2021


                       BEFORE


        THE HON'BLE MS. JUSTICE JYOTI MULIMANI


      WRIT PETITION.NO.23359 OF 2014 (LB-RES)


BETWEEN

THE COMMISSIONER,
THE MANGALORE
CITY CORPORATION,
LALBAGH,
MANGALORE-575003.
                                          ...PETITIONER

(BY SRI HAREESH BHANDARY. T, ADVOCATE)


AND

MRS. METILDA CELESTINE MADTHA,
W/O PHILIP PIUS MADTHA,
AGED ABOUT 54 YEARS,
R/AT DOOR NO.3-2/2,
CRYSTAL HOUSE,
SIMON LANE,
KANKANADY POST,
MANGALORE-575002.
                                         ...RESPONDENT


(RESPONDENT-SERVED)
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      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA SEEKING CERTAIN
RELIEFS.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:

                          ORDER

Sri. Harish Bhandary learned counsel for petitioner

has appeared through video conferencing. The respondent

is served and is unrepresented.

2. The respondent is the owner of property

bearing R.S.No.26-12 of Kankanady 'B' Village. Since

she had put up unauthorized construction on the terrace of

the building, the Mangalore City Corporation issued a

notice on 17.01.2011 under Section 321 (1) (2) of the

Karnataka Municipal Corporations Act 1976 ('the Act' for

short) for which the respondent submitted her reply on

25.01.2011. In the meanwhile, the Town Planning Officer

of the Corporation issued a notice on 21.04.2011 informing

the respondent that the explanation offered by her is not

satisfactory and that she was required to remove/demolish

the unauthorized construction put up by her on the terrace

of her building. As against the notice, the respondent

preferred an appeal under Section 443 (A) (i) (ii) of the

Act before the District Judge, D.K., Mangalore in

M.A.No.17/2011.

The Corporation contended that no appeal would lie

since the notice issued by the Town Planning Officer is not

a confirmation order under Section 321 (3) of the Act. It

is stated that the provisional order was confirmed under

Section 321 (3) of the Act on 25.02.2012. The District

Court allowed the appeal on 12.03.2014 and set aside the

notice dated 21.04.2011. It is this judgment which is

challenged in this writ petition on various grounds as set

out in the writ petition.

3. Learned counsel Sri Hareesh Bhandary. T

vehemently submitted that the trial Court could not have

been decided the way it was. The order passed by the

District Court is unsustainable in law.

Learned counsel strenuously urged that the appeal

filed by the respondent is not maintainable under Section

443-A of the Act.

Next, he submitted that the construction made by

the respondent is unauthorized since she has not taken

any permission from the Corporation. Therefore, the

Corporation was constrained to make provisional order

under Section 321 (1) (2) under the Act are legal.

A further submission was made that during the

pendency of the appeal, Corporation has passed the

confirmation order under Section 321 (3) of the Act. No

appeal is filed challenging the said confirmation order.

Under the circumstances, the order passed by the District

Court with the observation to drop all proceedings is

illegal.

Lastly, he submitted that the judgment of the trial

Court is liable to be quashed.

4. Heard the contention urged on behalf of

petitioner and perused the pleadings and annexures with

care.

5. The short question which perhaps requires

consideration is whether the appeal filed by the respondent

under section 443-A of the Act is maintainable?

6. The contention of the Corporation is that the

respondent has put up unauthorized construction on the

terrace of the building in R.S.No.26-12 of Kankanady 'B'

Village. Therefore, Corporation was constrained to pass

provisional order under section 321 (1) and (2) of the Act

on 17.01.2011 seeking explanation from her. The

respondent submitted her explanation on 25.01.2011

stating that since there was a leakage in the terrace of her

building and to prevent the same, she has put up the

construction.

Contending that the explanation offered by the

respondent is not satisfactory, the Town Planning Officer

issued a notice on 21.04.2011. It is relevant to note the

respondent challenged the notice issued by the Town

Planning Officer before the District Court which was

originally numbered as M.A.No.01/2011 and subsequently

re-numbered as M.A.No.17/2011.

Before the trial Court, the Corporation contended

that the appeal is not maintainable. In this Court also, the

Corporation adhered to the contention that the appeal filed

by the respondent is not maintainable. In fact, a very

detailed and effective argument was put forth before this

Court by counsel for petitioner regarding maintainability of

the appeal.

It would be relevant to extract Section 443-A of the

Act which reads as under.

"443-A. Appeal to Karnataka Appellate Tribunal or District Court.- (1) Any person aggrieved by any notice issued, action taken or proposed to be taken by the Commissioner under sections 308, 309, 321 (3) may appeal,-

(i) to the Karnataka Appellate Tribunal in case of the [Bruhat Bangalore Mahanagara Palike;]

(ii) to the District Court having jurisdiction in case of other corporations.

(2) The decision of the Karnataka Appellate Tribunal or as the case may be the District Court shall be final.

(3) All appeals made against any notice issued or other action taken or proposed to be taken by the Commissioner under sections 308, 309, 321 (3) and pending before the standing committee on the date of commencement of this section shall stand transferred to the Karnataka Appellate Tribunal, or as the case may be, District Court and such appeals shall be disposed off by them as if they were filed before them."

Having noticed the aforesaid provision and applying

the same to the facts and circumstances of this case,

evidently the appeal filed by the respondent before the

District Court is not maintainable. Since what is

contemplated under Section 443-A of the Act is filing of an

appeal as against the action taken under Section 321 (3)

of the Act.

It is significant to note that the Corporation issued

provisional order under section 321 (1) and (2) of the Act.

The respondent has challenged the notice issued by the

Town Planning Officer under section 443 (A) (i) (ii) of the

Act before the District Judge Mangalore in