Karnataka High Court
G Shanthappa & Sons vs Harihara City Municipal on 2 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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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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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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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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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
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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
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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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::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.
Sd/-
JUDGE
GJM
CT: BHK
