Karnataka High Court
Jayashree W/O Iranna Garagad vs Appasaheb S/O Naganaaagouda Biradar on 6 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC-D:11086
WP No. 104671 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 104671 OF 2024 (GM-CPC)
BETWEEN:
1. JAYASHREE W/O. IRANNA GARAGAD,
AGE: 53 YEARS, OCC: CIVIL ENGINEER,
R/O. HOUSE NO.9, SHIGGAON PARK,
VIDYANAGAR, HUBBALLI-580026,
DIST: DHARWAD.
2. IRANNA S/O. GANESH GARAGAD,
AGE: 52 YEARS, OCC: CIVIL ENGINEER,
R/O. HOUSE NO.9, SHIGGAON PARK,
VIDYANAGAR, HUBBALLI-580026,
DIST: DHARWAD.
...PETITIONERS
(BY SRI. VINAY S. KOUJALAGI, ADVOCATE)
AND:
APPASAHEB S/O. NAGANAGOUDA BIRADAR,
SAROJA
HANGARAKI AGE: 76 YEARS, OCC: PENSIONER,
R/O. SIDDHAROODAMATH NAGAR,
Location: HIGH
COURT OF
KARANTAKA
OLD-HUBBALLI, DIST: DHARWAD-580001.
DHARWAD
BENCH ...RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT,
ORDER OR DIRECTION AND QUASH THE DATED 19/6/2024 PASSED
BY THE III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC HUBBALLI,
REJECTING THE APPLICATION AT I.A.NO.3 PRODUCED AT
ANNEXURE-K, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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NC: 2024:KHC-D:11086
WP No. 104671 of 2024
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)
1. The present writ petition is filed seeking a writ
of certiorari to quash the order dated 19.06.2024 passed
by the III Additional Senior Civil Judge and JMFC, Hubballi
on I.A.No.3 produced as Annexure-K.
2. Heard the learned counsel for the petitioners
and perused the order passed by the Trial Court.
3. The application in I.A.No.3 was filed under
Order XXVI Rule 13 read with Section 54 of CPC before the
Trial Court in Ex.No.131/2023 seeking to appoint Court
Commissioner to get completion certificate from HDMC,
Hubballi.
4. The Trial Court considering the grounds urged
in the application and particularly taking into note of the
order passed by this Court in RFA CROB.No.100009/2017
dated 10.11.2022 holding that it is borne out from the
records that there is violation of the sanction plan and the
NC: 2024:KHC-D:11086
project of building is against the setback rules, rejected
the application filed for issuance of completion certificate.
The Trial Court observed that on 25.10.2022 the HDMC,
Hubballi has issued notice to JDR in pursuance to the
direction issued in the aforesaid RFA wherein it is stated
that the area which was shown as parking in the plan
submitted for approval has been used for construction
purpose and the walls have been extended in the parking
area also. In the said notice, it is also observed that in
pursuance of the observation made by the High Court of
Karnataka, the notice has been issued to demolish the
unauthorized construction taken up in CTS No.5048/2A/3.
The HDMC, Hubballi has again issued letter on 09.02.2023
subsequent to decision in RFA CROB.No.100009/2017
referred above to the decree holder herein response to the
letter dated 30.12.2022. In the said letter, it is clearly
stated that application submitted for issuance of
completion certificate has been already rejected as the
construction taken out is not in accordance with approved
plan and the area shown as parking area has been used
NC: 2024:KHC-D:11086
for construction purpose and setback rules have been
violated.
5. The Trial Court also taken note of the fact that
when the violation exceeds 5%, the same cannot be
legalized or regularized and hence the request for issuance
of completion certificate has been rejected. Therefore, the
observation made by this Court in RFA
CROB.No.100009/2017 coupled with correspondence
made by the decree holder, judgment debtor with HDMC
and letters and notices issued by HDMC will clearly reveal
that construction is taken up in violation of sanctioned
plan and despite of issuance of notice, some of the
construction taken up has not been demolished and
construction is against sanctioned plan but the decree
holder and judgment debtor are insisting HDMC to issue
completion certificate in respect of unauthorized
construction without complying or fulfilling the
requirements by the HDMC as per law and for the said
reasons, HDMC has refused to issue completion certificate.
NC: 2024:KHC-D:11086
6. The Trial Court taking into note of all these
aspects into consideration, comes to the conclusion that
the petitioners have adopted a method to get an order of
completion certificate by appointing a commissioner and
hence rejected the same.
7. The main contention of the petitioners' counsel
before this Court is that the very approach of the Trial
Court is erroneous and it ought not to have come to a
conclusion that the Court has nothing to do with
requirements of issuing the completion certificate. He also
contends that the direction given by the High Court in the
aforesaid RFA is also only with regard to taking of action if
any such violation is there and that does not mean that
there is violation by the petitioners and the very
observation made by the Trial Court is erroneous and it
ought not to have rejected the application filed by the
petitioners.
8. Having considered the submissions of the
petitioners' counsel and the grounds urged in the petition,
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it is forthcoming that one Appasaheb is arrayed as
respondent and the HDMC is not made as party to the
proceedings. It is also important to note that the execution
petition is pending before the Trial Court filed consequent
upon the decree passed in the original suit. The Trial Court
comes to the conclusion that the material discloses that
construction is made in violation of the sanction plan and
also made an observation that it can be legalized if there
is any marginal violation is made and not in case of
violation of 5%.
9. Taking into note a plea made before the Trial
Court, this Court is of the considered opinion that it is
nothing but an attempt made through Court to get the
completion certificate by an order of appointment of Court
Commissioner and the records also disclose that in view of
violation of the sanctioned plan, the HDMC has already
rejected the request for issuance of completion certificate.
When such being the case, the petitioners ought not to
have filed the application to appoint a Court Commissioner
NC: 2024:KHC-D:11086
to get completion certificate. Hence, I do not find any
merit in the petition to reverse the finding of the Trial
Court.
10. Further, the HDMC is not made as party to the
proceedings, which is the competent authority for issuance
of completion certificate and hence I do not find any error
committed by the Trial Court in rejecting the application.
11. In view of the discussions made above, I pass
the following:
ORDER
The writ petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SH
CT-MCK
