Karnataka High Court
Sri. Mallikarjun S/O Holebasappa ... vs The Deputy Commissioner on 1 February, 2025
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NC: 2025:KHC-D:2053-DB
WA No. 100067 of 2025
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
WRIT APPEAL NO. 100067 OF 2025 (LB-RES)
BETWEEN:
SRI. MALLIKARJUN S/O HOLEBASAPPA
SAVALIGEPPANAVAR,
AGED. 51 YEARS, OCC. BUSINESS,
R/O. C/O. SOMASHEKHAR KOTUR,
RAVIVARPETH, DHARWAD.
NOW R/O. NO.18, 6TH CROSS,
1ST MAIN, ISRO LAYOUT, BANGALORE- 78.
...APPELLANT
(BY SRI. RAMACHANDRA A MALI, ADV)
AND:
1. THE DY. COMMISSIONER
DHARWAD DISTRICT, DHARWAD-01.
Digitally signed
by 2. THE COMMISSIONER
MOHANKUMAR
B SHELAR HUBLI DHARWAD MUNICIPAL
Location: High CORPORATION, DHARWAD- 580001.
Court of
Karnataka,
Dharwad Bench 3. THE ASSISTANT COMMISSIONER
DIVISION ZONAL OFFICE NO.2,
HUBLI DHARWAD MUNICIPAL
CORPORATION, DHARWAD- 580001.
4. SRI. KIRAN S/O ISHWAR KOTUR,
AGED. 55 YEARS, OCC. BUSINESS,
R/O. SARASWATPUR, DHARWAD-02.
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NC: 2025:KHC-D:2053-DB
WA No. 100067 of 2025
5. SRI. ARUN ISHWAR KOTUR,
AGED. 52 YEARS, OCC. BUSINESS,
R/O. GANDHINAGAR, 4TH MAIN,
4TH CROSS, DHARWAD- 02.
6. HESCOM, REP. BY AEE,
DHARWAD, CITY DHARWAD.
7. KARNATAKA URBAN WATER SUPPLY AND
DRAINAGE BOARD, REP. BY
IN-COMMISSIONER, DHARWAD-01.
8. STATE OF KARNATAKA
REP. BY HOME DEPT.
BY IN-SECRETARY, BENGALURU-01.
...RESPONDENTS
(BY SRI. SHARAD MAGADUM, AGA FOR R1 & R8,
SRI. G.I. GACHCHINAMATH, ADV FOR R2 & R3,
SRI. B.V. SOMAPUR, ADV FOR C/R4 & R5,
SRI. B.S. KAMATE, ADV FOR R6,
SRI. DAYANAND BANDI, ADV FOR R7)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING THIS HON BLE COURT TO CALL
FOR THE RECORDS IN W.P.NO.100376/2025 (LB-RES) ON THE
FILE OF THE LEARNED SINGLE JUDGE OF THIS HON BLE
COURT AND SET ASIDE THE IMPUGNED ORDER DTD. 30-01-
2025 MADE IN THE ABOVE WRIT PETITION PASSED BY THE
LEARNED SINGLE JUDGE OF THIS HON BLE COURT AS THE
SAME BEING ERRONEOUS AND NOT SUSTAINABLE IN LAW
AND CONSEQUENTLY DISMISS THE WRIT PETITION
W.P.NO.100376/2025 (LB-RES) ON THE FILE OF THE LEARNED
SINGLE JUDGE AS THE SAME BEING DEVOID OF MERITS IN
THE INTEREST OF THE JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
CORAM: AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
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WA No. 100067 of 2025
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)
This writ appeal is filed against an interim order
dated 30.01.2025 passed by the learned Single Judge in
W.P.No.100376/2025, wherein respondent Nos.4 and 5
have filed the writ petition seeking A writ of mandamus
directing respondent No.1 to take action, as per the law in
respect of the building constructed by the appellant; and
also issue direction to respondent No.1 to take action
against the concerned officials of HDMC, Dharwad for non-
taking steps against the appellant in construction of the
building; and direct respondent No.1 to make videography
of the action of demolition and produce the same before
the court; it is also prayed that, heavy cost to be imposed
on the appellant, HDMC officials and to be utilized for
educational public awareness towards the law and legal
system.
2. On 21.01.2025, the learned Single Judge
passed the following order.
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"1. Learned AGA accepts notice for
respondent No.1. Sri.G.I.Gachchinmath,
learned counsel is directed to accept
notice for respondents No.2 and 3.
2. Issue notice to respondent No.4
returnable by 20.02.2025.
3. Sri.G.I.Gachchinmath, learned counsel is
directed to obtain instructions and make
his submission as to what action has
been taken pursuant to confirmatory
order passed under subsection (3) of
Section 321 of the Municipal
Corporations Act, dated 15.11.2024 at
Annexure-H7 to the petition.
4. Learned counsel for the petitioner is
directed to furnish two sets of copies of
the petition along with annexures on the
counsel for the respondents.
5. Relist on 28.01.2025."
3. Though the learned Single Judge has directed to
re-list the writ petition on 28.01.2025, before service of
the notice to the appellant, the learned Single Judge has
passed the impugned order dated 30.01.2025 directing the
respondent-Corporation to implement the confirmatory
order issued under Sub-section (3) of Section 321 of the
Municipal Corporation Act (hereinafter referred to as 'the
Act' for short) by following all applicable procedures, rules
and requirements. The same shall be reported by
respondent No.7 therein to the writ court. Respondent
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No.1 issued a communication to the appellant on
31.01.2025 directing the appellant to pull down the
portion of the building constructed within 02.02.2025 at
6.00 a.m. Hence, the appellant has filed this writ appeal.
4. Heard the learned counsel for the appellant and
also the learned counsel for respondent Nos.4 and 5.
5. Learned counsel for the appellant submits that,
though the notice to the appellant was issued and it was
returnable by 20.02.2015, before the service of notice to
the appellant, the learned Single Judge has passed the
impugned order directing respondent No.2 to implement
the confirmatory order passed under Sub-section (3) of
Section 321 of the Act. He submits that the appellant
aggrieved by the confirmatory order, preferred a review
petition before the Commissioner. He submits that no
opportunity was provided to the appellant before passing
the impugned order. The impugned order passed by the
learned Single Judge is in violation of the principles of
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natural justice. Hence, on these grounds, he prays to allow
the appeal.
6. Per contra, learned counsel for respondent
Nos.4 and 5 submits that the appellant has constructed
the building in violation of the sanctioned plan. He submits
that respondent Nos.4 and 5 submitted several
representations to respondent No.2 since 2018, and
respondent No.2 passed the confirmation order. Despite
passing the confirmatory order, respondent No.2 has not
implemented the confirmatory order. He submits that the
construction undertaken by the appellant is causing
nuisance and he has encroached upon the property of
respondent Nos.4 and 5. Hence, on these grounds, he
prays to dismiss the writ appeal.
7. Perused the records and considered the
submission of the learned counsel for the parties.
8. It is not in dispute that the appellant has
undertaken the construction work. Respondent Nos.4 and
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5 have lodged a complaint against the appellant alleging
that the appellant has undertaken the construction work in
violation of the sanctioned plan. Respondent Nos.4 and 5
have submitted several representations to respondent
No.2 to take appropriate action against the appellant.
Despite submitting several representations, respondent
No.2 has not taken any action against the appellant.
Further, the provisional order was passed under Sub-
section (1) of Section 321 of the Act. Thereafter, a show-
cause notice was issued under Section 321(2) of the Act,
and the confirmatory order was passed under Section
321(3) of the Act on 15.11.2024. Respondent No.2
directed the appellant to remove the portion of illegal
construction undertaken by him. Despite passing the
confirmatory order, the appellant neither challenged the
confirmatory order nor complied with the confirmatory
order. Learned counsel for the appellant submits that
today the appellant filed a review before the concerned
authority. Respondent Nos.4 and 5 requested respondent
No.2 to implement the confirmatory order. Respondent
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No.2 did not implement the confirmatory order.
Respondent Nos.4 and 5 have approached this court in
W.P.No.100376/2025 seeking a writ of mandamus for
implementation of the confirmatory order. The learned
Single Judge issued notice to the appellant, returnable by
20.02.2025, and ordered to list the writ petition on
28.01.2025.
9. From the perusal of the records, it discloses
that notice has not been duly served on the appellant and
the matter was listed on 30.01.2025. On that day, the
learned Single Judge directed respondent No.2 to
implement the confirmatory order issued under Sub-
section (3) of Section 321 of the Act. Pursuant to the order
dated 30.01.2025, respondent No.2 has issued a
communication intimating the appellant that the
Corporation will demolish the building on 02.02.2025 at
6.00 a.m. The order passed by the learned Single Judge is
in violation of the principles of natural justice. No
opportunity was provided to the appellant to put forth his
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case before the learned Single Judge. The communication
dated 31.01.2025 issued by respondent No.2 is in violation
of the principles of natural justice and it requires
reconsideration by the learned Single Judge. Accordingly,
we proceed to pass the following;
ORDER
The writ appeal is disposed of.
Appellant is directed to appear before the learned
Single Judge on 05.02.2025.
Respondent No.2 is directed not to precipitate the
matter, till 05.02.2025.
Learned counsel for respondent Nos.4 and 5 also
undertakes not to precipitate the matter till 05.02.2025.
Undertaking is placed on record.
Office is directed to list W.P.No.100376/2025 before
the learned Single Judge on 05.02.2025.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
MBS
CT: BSB
