Karnataka High Court
Vinay Developers And Builders vs The President on 29 October, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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WP No. 103238 of 2024
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 103238 OF 2024 (LB-RES)
BETWEEN:
1. VINAY DEVELOPERS AND BUILDERS,
A REGISTERED PARTNERSHIP FIRM,
UNDER THE PARTNERSHIP ACT, 1932,
OFFICE AT KADOLKAR GALLI, BELAGAVI,
REPRESENTED BY ITS PARTNERS,
MR. NITIN S/O. VINAYAKRAO BHATKANDE,
AGE: 50 YEARS, OCC: BUSINESS,
R/O. C/O. VINAY DEVELOPERS & BUILDERS
OFFICE AT KADOLKAR GALLI, BELAGAVI.
2. MRS. PRATIBHA W/O. NITIN BHATKHANDE,
AGE: 49 YEARS, OCC: BUSINESS,
R/O. C/O. VINAY DEVELOPERS & BUILDERS
MALLIKARJUN OFFICE AT KADOLKAR GALLI, BELAGAVI.
RUDRAYYA
KALMATH ...PETITIONERS
Location: HIGH (BY SRI PRASHANT F. GOUDAR, ADVOCATE.)
COURT OF
KARNATAKA
DHARWAD
BENCH AND:
1. THE PRESIDENT,
BENAKANAHALLI VILLAGE PANCHAYAT,
BENAKANAHALLI, TQ: DIST: BELAGAVI-590011.
2. THE PANCHAYAT DEVELOPMENT OFFICER,
BENAKANAHALLI VILLAGE PANCHAYAT,
BENAKANAHALLI, TQ: DIST: BELAGAVI-590011.
...RESPONDENTS
(BY SRI SHIVARAJ HIREMATH, ADVOCATE.)
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NC: 2024:KHC-D:15822
WP No. 103238 of 2024
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
OF MANDAMUS DIRECTING THE RESPONDENT AUTHORITIES TO
CANCEL THE IMPUGNED NOTICE ISSUED AGAINST THE
PETITIONER BEARING NO.PÀæ¸À:UÁæ¥À¨É/«ªÀ/2023-24 DATED 16.03.2024,
CANCELLING THE PERMISSION GRANTED FOR PUTTING UP A
CONSTRUCTION OF A BUILDING TILL THE ORDER OF THE HIGHER
OFFICERS AS MADE UNDER ANNEXURE-"A" AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR)
Heard the learned counsel for the petitioners and
learned counsel for the respondents.
2. This petition is filed by the petitioners seeking a
writ of mandamus for a direction to respondent authorities to
cancel the impugned notice issued against the petitioners
dated 16.03.2024 whereby the permission granted to the
petitioners was cancelled for construction of a building. The
petitioners are the registered partnership firm engaged in
the business of construction of apartment and development
of properties. They purchased the residential properties
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which is the subject matter of the Annexure-A herein and
after getting the mutation of the property in his name, the
petitioners applied for grant of permission for construction of
an apartment building in the property purchased by them
under section 64 of the Karnataka Gram Swaraj and
Panchayat Raj Act. Respondents No.1 and 2 after receiving
necessary fee granted permission to construct the building
by imposing certain conditions.
3. It is the contention of the learned counsel for the
petitioners that they have been putting up construction in
accordance to the permission granted by the respondent
after obtaining huge financial assistance from various
financial institutions. This being the state of affairs,
respondents No.1 and 2 issued a notice to the petitioners to
stop construction on the ground of violation of building
permission and later issued multiple notices to the petitioner
and thereafter cancelled the permission. Aggrieved by the
same, the petitioners approached this Court in
W.P.No.100276/2024 (LB-RES), which came to be disposed
of with a direction to the appellate authority to dispose of the
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matter as expeditiously as possible, by fixing outer limit of
time from the date of receipt of a copy of the order.
4. Pursuant to the order passed by this Court, the
Executive Officer passed an order on 08.02.2024 in Appeal
No.10/2023 for an inspection to be carried out within 15
days. Thereafter on 15.03.2024 the property was inspected
by the respondents in the presence of the petitioners and
thereafter a notice came to be issued by the respondent to
the petitioners for removal of the illegal construction put up
on the property vide notice dated 27.02.2024.
5. It is the contention of the petitioners that
pursuant to the said notice they have removed the illegal
construction so pointed out by the respondents. Pursuant to
which respondents issued a notice dated 16.03.2024
cancelling the permission granted to the petitioners based on
the minutes of meeting conducted by the respondent
authority bearing Gram Panchayat General Meeting No.10 on
16.03.2024. Aggrieved by this, the petitioners are before this
Court.
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6. It is the contention of learned counsel for the
petitioners that there is a violation of principles of natural
justice. No notice or enquiry has been conducted before
issuing the impugned notice dated 16.03.2024 at Annexure-
A. Therefore, petition presently filed against Annexure-A is
sustainable before this Court. Accordingly, he seeks suitable
remedy and relief. He relies on the Judgment of Hon'ble
Apex Court in the case of Whirlpool Corporation vs.
Registrar of Trade Marks Mumbai and Others, reported in
1998 (8) SCC 1.
7. Per Contra, the learned counsel for respondents
No.1 and 2 vehemently contends that while conducting the
2nd inspection pursuant to the orders passed by the appellate
authority, the petitioners were notified and their presence
the spot inspection has been conducted as produced in
Annexure-N, where petitioners participated and they are the
signatories to the said document. Under the circumstances,
it cannot be contended by the petitioners that they were not
notified and not participated in the spot inspection so
conducted by respondents No.1 and 2.
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8. It is further contended by learned counsel for
respondents No.1 and 2 that if at all the petitioners are
aggrieved by any such orders passed under Section 64(1),
the petitioners are entitled to and are at liberty to challenge
the same by way of an appeal to the Executive Officer from
any order or direction or notice of the Grama Panchayat
under sub-section (1), (2) and (3) of Section 64 by filing an
appeal under Section 64(5) read with Section 296 of the
Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (for
short, 'the Act, 1993') which on an earlier occasion
petitioners had availed by approaching the said appellate
authority, hence he therefore contends that it cannot be said
now by petitioners that the writ petition would be
maintainable in view of violation of principles of natural
justice and fundamental right of the petitioners being
infringed.
9. On the contrary, learned counsel for petitioners
contends that pursuant to Annexure-N spot inspection was
conducted which the petitioners participated. Even according
to this document, there is no serious violation committed by
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the petitioners. Hence, he contends that in view of huge
financial loss suffered by the petitioners, they would be put
to serious hardship. Be that as it may, when there is specific
provision provided under the Act, 1993 for redressal of
grievances of certain mechanism by appeal against any such
order passed by the authority i.e., respondents No.1 and 2
herein. It is incumbent upon the petitioners to first approach
and explore the possibility of appellate remedy which is
alternative efficacious remedy available rather than rushing
to this Court to invoke the writ jurisdiction under Article 226
of the Constitution of India.
10. Under the circumstances, it cannot be said that the
petitioners would squarely fall within the ambit of the
Judgment of the Hon'ble Apex Court in the case of Whirlpool
Corporation referred supra unless they can show and
establish that there is jurisdictional error committed by the
authority in passing such impugned order or there was
violation of serious fundamental rights against the
petitioners, which is not the case herein. Under the
circumstances, I am afraid of contention put forth by the
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petitioners cannot be accepted. They will have to be
relegated to the appellate Court remedy available under the
statute for redressal of their grievance.
11. It is seen that vide interim order dated 10.06.2024,
petitioners had benefit of an interim order of stay, however
the same would not enure to the benefit in view of disposal
of this petition. Accordingly, I pass the following :
ORDER
(i) Writ petition is disposed of reserving liberty to the
petitioners to approach the appellate authority for redreesal
of their grievance against the impugned order at Annexure-A
by urging all such grounds urged herein.
(ii) Appellate authority on such appeal being filed shall
consider the case of petitioners expeditiously and decide the
application for interim order, if any, filed within a period of
15 days from the date of filing of such application and
appeal.
(iii) In view of disposal of this petition, application filed
by Sri D.M.Kulkarni appearing for impleading applicants
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would not arise. He is at liberty to make such application
before the appellate authority; same shall be considered
independently without being influenced by the order passed
by this Court.
Ordered accordingly.
Sd/-
(PRADEEP SINGH YERUR)
JUDGE
MRK-para 1 to 5.
CKK-para 6 to end.
CT-MCK
