Karnataka High Court
Shri H N Venkatesh S/O Narayanrao vs The Commissioner on 6 June, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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WP No. 101556 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO.101556 OF 2022 (LB-UC)
BETWEEN:
1. SHRI. H.N. VENKATESH
S/O NARAYANRAO,
AGE: 58 YEARS,
OCC: BUSINESS,
R/O: NOW BADAMINAGAR,
KESHWAPUR, HUBBALLI.
1A. SHAILA W/O LATE VENKATESH HATWAR,
AGE: 59 YEARS, OCC: HOUSEHOLD,
R/O: NO.34, NEW BADAMI NAGAR,
KESHWAPUR, HUBBALLI,
DIST: DHARWAD-580223.
1B. MAYUR S/O LATE VENKATESH HATWAR,
AGE: 35 YEARS, OCC: BUSINESS,
R/AT: NO.34, NEW BADAMI NAGAR,
KESHWAPUR, HUBBALLI,
DIST: DHARWAD-580023.
1C. MADHURA HATWAR W/O BIWI ANIRUDHA,
BHARATHI AGE: 32 YEARS, OCC: HOUSEHOLD,
HM
R/O: NEAR SYNDICATE BANK,
Digitally signed by
BHARATHI H M
TUMKUR, DIST: TUMKUR-572101.
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH ... PETITIONERS
Date: 2024.06.13
13:05:28 +0530
(BY SRI. SADIQ N. GOODWALA, ADVOCATE)
AND:
1. THE COMMISSIONER,
HUBBALLI-DHARWAD MUNICIPAL CORPORATION,
LAMINGTON ROAD, HUBBALLI.
2. DEPUTY DIRECTOR OF TOWN PLANNING AUTHORITY,
HUBALLI-DHARWAD MUNICIPAL CORPORATION,
LAMINGTON ROAD, HUBBALLI.
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WP No. 101556 of 2022
3. THE ASSISTANT COMMISSIONER,
ZONAL NO.8 HUBBALLI-DHARWAD
MUNICIPAL CORPORATION,
J.C. NAGAR, HUBBALLI.
4. SMT. JYOTI W/O PRAKASH MANE,
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O: H.NO.12-2-417/85,
SHARDA NAGAR COLONY,
GUDIMALKAPUR, HYDERBAD-500006.
5. SHRUDHA D/O PRAKASH MANE,
AGE:25 YEARS, OCC: NOT KNOWN,
R/O: H.NO. 12-2-417/85,
SHARDA NAGAR COLONY,
GUDIMALKAPUR, HYDERBAD-500006.
6. SHREYA D/O PRAKASH MANE,
AGE. 22 YEARS, OCC. PVT. SERVICE,
R/O. H.NO. 12-2-417/85,
SHARDA NAGAR COLONY,
GUDIMALKAPUR, HYDERBAD-500006.
7. KRISHNA S/O MALLESHAPPA GANDGALEKAR,
AGE: 48 YEARS, OCC: BUSINESS,
R/O. TORAVI HAKKAL, HUBBALLI.
8. SMT. LAXMI W/O KRISHNA GANDGALEKAR,
AGE: 36 YEARS, OCC. HOUSEHOLD,
R/O. TORAVI HAKKAL, HUBBALLI.
... RESPONDENTS
(BY SRI G.I. GACHCHINAMATH, ADVOCATE FOR R1 & R2;
SRI AYUSH BHAT, ADVOCATE FOR R3-R6;
SRI GOURISHNKAR MOT, ADVOCATE FOR R7 & R8)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO A WRIT IN THE
NATURE OF MANDAMUS DIRECTING THE RESPONDENT NO.1 TO 3 TO
DEMOLISH THE CONSTRUCTION AS PER REPORT AND SKETCH
SUBMITTED TO THIS HON'BLE COURT IN WP.NO.104183/2021 AND
ALSO ORDER PASSED UNDER SECTION 321(3) OF KMC ACT, IN
RESPECT OF CTS.NO.2726 AND 2730 WARD NO.I, J.C. NAGAR,
STATION ROAD, HUBBALLI AND ETC.
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WP No. 101556 of 2022
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and the
learned counsel for the respondents.
2. This petition is filed by the petitioners seeking a writ
of mandamus for a direction to the respondent Nos.1 to 3 to
demolish the construction as per the report and sketch
submitted to this Court in writ petition No.104183/2021 and
also order passed under Section 321(3) of the Karnataka
Municipal Corporation Act, 1976 (for short 'the KMC Act') in
respect of CTS Nos.2726 and 2730, ward No.1 of J.C. Nagar,
Station Road, Hubballi. It is a case of petitioners that
petitioners are the owner of a commercial shop bearing CTS
No.2733 having purchased the same on 10.03.1999 and the
adjoining owner of the property bearing CTS Nos.2726 and
2730, started to put up construction in violation of the
sanctioned plan without leaving any setback has caused
inconvenience due to the illegal construction over the property,
which has been exclusively reserved for parking for the
complex. Hence, it is a case of petitioners that the respondents
have not adhered themselves to the approved sanctioned plan
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and thereby have violated the sanctioned plan in putting up
construction on all sides of the property without leaving setback
and put up a cellar and basement which is impermissible
against the sanctioned plan permitted by respondent No.2.
3. This being the state of affairs, petitioners brought
this anomalies, illegalities and impermissible construction in
violation to the sanctioned plan to respondent Nos.1 to 3. When
such a complaint was made to the respondents authorities on
the basis of the writ petition filed earlier, i.e., WP
No.101583/2021, respondent No.2 issued notices to the
concerned adjoining owners, i.e., respondent Nos.4 to 8 under
Section 321 and this Court in the earlier writ petition as
mentioned herein above, directed the adjoining owners not to
proceed with the construction by way of an interim order. This
Court, by an order dated 03.09.2021, disposed of the writ
petition No.101583/2021 directing respondent Nos.1 to 3
authorities to take necessary steps in accordance with law
pursuant to the representations made within a period of one
month which order is also enclosed as Annexure-C.
4. In spite of the order passed by this Court directing
respondent Nos.1 to 3 to take necessary steps in accordance
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with law for the illegal constructions put up by the private
respondents, no action was taken against the adjoining owners
and they have continued to put up construction on the property
in question. It is also submitted that during the pendency of the
writ petition, a spot inspection was also conducted and a report
also came to be filed, which is placed on record.
5. This being the state of affairs, the final order came
to be passed on 10.01.2022 in WP No.101583/2021, wherein
this Court directed the officials/respondents authorities to
remove the violations as per the report and sketch submitted to
this Court. In pursuance to which, the respondents/authorities
started demolishing to comply the order passed by this Court in
terms of Section 321(3). The respondents were notified to
demolish the area as per the report and sketch. Despite the
said final order and final notice under Section 321(3), the
respondents have not demolished the unauthorized illegal
construction put up and so also the respondents authorities
have not taken any action to remove or demolish the illegal
construction made. Therefore, it is the contention of learned
counsel for the petitioner that since no action has been taken
by the respondents in blatant violations of the orders passed by
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this Court and also in accordance to the statutory duty cast
upon them under Section 321(3), he is before this Court
seeking a writ of mandamus for a direction to the respondents
to demolish the illegal construction put up by the respondents.
6. This being the state of affairs, despite the orders
passed by this Court in WP No.101583/2021, since no
compliance was met and illegal constructions were blatantly
continued by the respondents, the petitioner filed another writ
petition in WP No.104183/2021 which came to be allowed on
10.01.2022 wherein this Court passed the following order.
"In the light of this report, nothing survives for
consideration in the petition and the petition stands disposed
of accordingly. Insofar as the petitioner's prayer for a
direction to the seventh and eighth respondents to stop
construction is concerned, it would suffice for this Court to
observe that the second respondent/Deputy Director of
Town Planning Authority, while issuing the notices under
Section 321(1) and Section 321(2) of the Act, has directed
these respondents to stop construction and these
respondents must in compliance with such directions stop
construction and if there is any construction despite the said
direction, the authorities will have to necessarily take
appropriate action in this regard."
7. It is pursuant of these two orders the present writ
petition is filed by the petitioner.
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8. I have heard the learned counsel for the
respondents and the learned counsel for the authorities Sri G.
I. Gachchinamath.
9. Learned counsel for the respondents has filed a
memo submitting that he had filed a miscellaneous appeal in
MA No.5039/2022 against the respondents authorities on the
orders issued under Section 321(3). In which the respondents
authorities filed a memo stating that the appeal would not be
maintainable as the entire building is already demolished by the
respondents/corporation and there is no question of
regularization as per the provisions of the KMC Act and
thereafter accepting the memo filed by the respondents
authorities, the said miscellaneous appeal came to be disposed
of as not pressed in view of the memo filed by the respondents
authorities. But however, learned counsel for the petitioners in
this case does not agree with the submissions put forth by the
respondents by contending that despite the orders passed by
this Court twice and an order issued under Section 321(3) a
memo is filed before the miscellaneous appeal Court in MA
No.5039/2022, the petitioner was not a party to the
proceedings and hence, he contends that the building so sought
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to be demolished is not demolished and the violations and the
illegal constructions are still existing. Hence, he is before this
Court.
10. Having heard the learned counsels for the
petitioners, the contesting respondents and the authorities.
11. It is seen that the petitioners and the contesting
respondents are adjacent owners. There is some private
dispute between each other on the illegal constructions put up
by both of them. By not leaving the setback as prescribed
under the Municipal Corporations Act, notices were issued. The
corporation authorities have issued notice under Sections
321(1), (2) and (3) and it is submitted that partially some
demolition has been taken place and if the order in the spirit of
the judgment of this Court and 321(3) is undertaken, most of
the portions of entire building would collapse in view of the
demolition that would be undertaken for the violation in
accordance with law and he contends that the corporation
should not be blamed by the private respondents or petitioners
in their respective cases. Hence, he submits that there is a
slight difficulty on the ground level in enforcing the orders of
this Court. Be that as it may, this petition is filed way back in
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the year 2021 for the violations and illegal constructions
between the parties, orders are passed time and again the
same is not complied with, and in blatant violation, the orders
of this Court is shown scant respect and in deliberate
aggravated contempt of the orders of this Court. If private
parties continued their illegal constructions, it may be by
themselves or in collusion with the concerned authorities. This
Court does not want to touch upon that issue for the time being
in this case. This is a simple case of a writ of mandamus for a
direction to respondent Nos.1 to 3 to demolish the construction
which is illegal on proper verification and spot inspection which
has already been conducted in the earlier writ petitions as
narrated above.
12. Therefore, nothing much remains in this case
except to direct the respondents authorities to conduct
themselves in accordance with the directions passed by this
Court in the earlier round of litigation to remove any illegal
constructions, violations and deviations so made in
contravention to the sanctioned plan and also to follow Section
321(3) of the KMC Act in strict sense. It is made clear that
even if the entire building has to collapse, it is at their risk on
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the flaw of the concerned respondents which the respondents
authorities cannot be blamed. A direction is given by this Court
to the private respondents to demolish or remove the illegal
constructions by themselves without disturbing the other
portion, if at all it is possible. Failing which, this Court is left
with no other option, but to direct respondent Nos.1 to 3
authorities to remove the illegal constructions and demolish the
extent of construction which is in violation of the sanctioned
plan.
13. In the course of arguments, it is further submitted
by the learned counsel for the private respondents that most of
the so called illegal constructions have been removed by
respondent Nos.1 to 3 and if there is any further illegal
constructions/violations against the sanctioned plan, the same
may be removed by respondent Nos.1 to 3. For which the
private respondents would not have any grievance.
Accordingly, I pass the following:
ORDER
i) The petition is allowed.
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ii) The writ of mandamus issues to respondent
Nos.1 to 3 to remove/demolish the illegal
unauthorized construction as per the report and
sketch submitted to this Court in WP
No.104183/2021 and also follow the provisions
of Section 321(3) of the Karnataka Municipal
Corporation Act, 1976 in respect of CTS
Nos.2726 and 2730 Ward No.1, J. C. Nagar,
Station Road, Hubballi.
iii) The said task shall be completed by respondent
Nos.1 to 3 authorities within four weeks from the
date of receipt of copy of the order.
Sd/-
JUDGE
SSP
CT:BCK
