Karnataka High Court
Sri P Rathnakar Shenoy vs The Commissioner on 9 June, 2025
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WP No. 4374 of 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 4374 OF 2018 (LB-RES)
BETWEEN:
SRI. P. RATHNAKAR SHENOY
S/O LATE P. JANARDHAN SHENOY
AGED ABOUT 85 YEARS
R/AT NEAR SIDHI VINAYAKA TEMPLE
BIKARNAKATTE, MANGALURU-575 005.
...PETITIONER
(BY SRI. PUNDIKAI ISHWARA BHAT, ADVOCATE)
AND:
1. THE COMMISSIONER
MANGALURU CITY CORPORATION
LALBAGH, MANGALURU-575 001.
Digitally signed 2. SRI. JNANESH
by AL BHAGYA S/O SRI. ASHOK
Location: HIGH AGED ABOUT 46 YEARS
COURT OF R/AT BIKARNAKATTE
KARNATAKA MANGALURU-575 005.
...RESPONDENTS
(BY SRI. HAREESH BHANDARY .T, ADVOCATE FOR R1;
R2 SERVED AND UNREPRESENTED)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 30.06.2017 PASSED BY THE III ADDITIONAL
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WP No. 4374 of 2018
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DISTRICT AND SESSION JUDGE, MANGALURU IN MISC. CASE
NO.101/2012 (ANNEXURE-A) AND ETC.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
ORAL ORDER
The captioned petition is filed assailing the order of
the appellate authority/III Additional District and Sessions
Judge, Mangaluru in Misc. Case No.101/2012 and also the
impugned order of demolition dated 14.09.2012 passed by
respondent No.1/Commissioner, City Corporation,
Mangaluru.
2. Heard the learned counsel for the petitioner.
The counsel appearing for respondent No.1 has filed a
memo thereby retiring from the case. Respondent
No.2/complainant though served has not chosen to contest
the petition.
3. The short point that would arise for
consideration before this Court is:
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" Whether respondent No.1 was justified in
ordering demolition of unauthorized building
measuring about 3.6 meters in width and 6.20
meters in length in Door No.3-11-979 situated in
79 of Padavu Village, within the limits of Mangaluru
City Corporation."
4. The official records produced before this Court
clearly establish that the petitioner is the owner of a
residential property bearing Door Nos. 3-E-11-979 and 3-
E-11-979A, situated in Survey No. 64/7 of Padavu Village,
Mangaluru Taluk. The ownership of the said property flows
from a registered partition deed dated 06.03.1965,
executed among the members of the petitioner's family.
Under the terms of the said partition deed, the petitioner
was allotted a portion of land measuring 22 cents in the
aforementioned survey number. Pursuant to the said
allotment, the petitioner constructed a residential house
over the said property in the year 1966, after obtaining
the requisite building licence from the competent
municipal authority, i.e., the then Mangaluru City
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Municipality. The building licence granted in favour of the
petitioner is placed on record at Annexure-C, which is
dated 12.07.1966. The said construction was in
accordance with the sanctioned plan and permission
granted for a residential building, and the said structure
stood undisputed for several decades.
5. The records further reveal that the said
residential property is abutting the National Highway
No.17. In the year 2006, the National Highway Authorities
undertook a road widening project as part of infrastructure
development, during which a portion of the petitioner's
land was acquired. In the process, a total extent of 81
square meters of the petitioner's property was acquired,
and compensation was duly paid to the petitioner. It is
significant to note that the acquired portion included a part
of the residential structure originally constructed by the
petitioner. As a consequence of the partial demolition
resulting from the acquisition, the structural integrity of
the petitioner's residential house was affected. The
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petitioner, therefore, claims that he was compelled by
necessity to undertake repair works to restore the building
and ensure its safety and usability. However, based on a
complaint lodged by respondent No.2, it was alleged that
the petitioner, under the guise of carrying out repairs, had
in fact reconstructed a portion of the building and
converted it into commercial shops, which he had
thereafter let out for commercial use. Acting upon this
complaint, a notice was issued to the petitioner by
respondent No.1 under the provisions of the Karnataka
Municipal Corporations Act. The petitioner submitted a
detailed reply to the said notice. However, upon
conducting a local inspection and enquiry, the competent
authority came to the conclusion that the petitioner had
undertaken reconstruction and change of user of the
premises for commercial purposes without obtaining prior
permission or building licence from the Mangaluru City
Corporation. Consequently, respondent No.1 passed an
order directing the demolition of the unauthorised portion
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of the construction measuring 3.6 meters x 6.2
meters situated in premises bearing Door No.3-E-11-979.
6. A careful examination of paragraph 9 of the writ
petition discloses that the petitioner has candidly admitted
that he had been granted a building licence in 1966
exclusively for the construction of a residential house. It is
evident that the original building constructed by the
petitioner was in consonance with the sanctioned
residential plan and the licence issued, as evidenced
by Annexure-C. However, while responding to the notice
issued under Section 321 of the Karnataka Municipal
Corporations Act, the petitioner unequivocally admitted
that the portion of the structure in question had been
constructed for commercial purposes. Notably, in the
course of responding to the said notice, the petitioner did
not produce any sanctioned plan or licence from the
competent authority permitting construction or alteration
for commercial use. Although the petitioner attempted to
justify the structure by asserting that only repairs were
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carried out, the inspection conducted by the Corporation
officials revealed that a fresh structure intended for
commercial use had been put up, which amounted to
unauthorized construction. This factual finding, coupled
with the petitioner's own categorical admission in his reply
to the statutory notice, substantially undermines the
petitioner's defence. In this context, this Court considers it
pertinent to reproduce the relevant portions of the
unnumbered paragraphs of the petitioner's reply, which
clinch the core issue in controversy between the parties.
"Last year I had carried out repairs of 6 shop
premises bearing Door No.3-11-984 to 3-11-988 but
I could not continue the repair work due to
forthcoming of rainy season.
This year I started to complete the unfinished
work. Since the old building was made up of mud
wall, I have plastered the walls by cement.
I have been in possession of Door No. 3-11-
979 and 3-11-991 which are the portions of the
building retained with me after demolition of the
portion of the building while widening the road.
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Two rooms in the 1ST floor and a room in the
ground floor of the building bearing Door No.3-11-
979 were acquired by the National Highway
Authorities. The remaining two rooms situated in the
building are not sufficient for our accommodation.
Therefore Door No.3-11-980 was not let out and
remained vacant for the last four years. Since we
started to live in the house and to augment income
for our livelihood during my retired life I have
decided to utilize Door No.3-11-979 for commercial
purposes.
I am 77 years old. Earlier I was doing business
and I am a retired person. Since I have no income
and in order to generate income during my retired
life I have decided to let out the building. As such I
may be permitted to complete the repair work of
building."
(Emphasis supplied by me)
7. A detailed reading of the second unnumbered
paragraph in the petitioner's reply to the notice issued
under Section 321 of the Karnataka Municipal Corporations
Act decisively clinches the controversy involved in the
present case. The said reply makes it unequivocally clear
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that under the pretext of carrying out mere repairs, the
petitioner has, in fact, reconstructed the existing
residential building and converted it into commercial
shops. In categorical terms, the petitioner admits that
while executing the so-called repairs, he has constructed
six commercial shop units within the premises originally
sanctioned as a residential building. Further, the petitioner
attempts to justify this deviation by stating that he is a
retired person aged 77 years, with no independent source
of income, and therefore, to support himself during his old
age, he has constructed and let out these commercial
shops as a means of livelihood. While such an explanation
may elicit sympathy, it does not in any way condone or
legalize the unauthorized change in land use and building
structure. The appellate authority has thoroughly
examined these factual aspects and has rightly concluded
that the petitioner has misused the permission under the
guise of repairs. The petitioner's own admissions have
been adverted to in detail in the appellate order. In fact,
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the learned District Judge, in the order passed in Misc.
Appeal No.101/2012, while affirming the order of the
respondent-authority, has placed significant reliance on
these admissions and has rightly dismissed the appeal,
thereby affirming that the construction of the commercial
structure was without sanction and in clear breach of
municipal regulations.
8. Upon an independent examination of the
impugned order passed by the respondent-authority under
Section 321 of the Karnataka Municipal Corporations Act,
this Court finds no legal infirmity or procedural irregularity
warranting interference. On the contrary, the material
placed on record, including the spot inspection report and
the admissions made by the petitioner, clearly establish
that a residential building has been unlawfully converted
into a commercial structure. It is well settled in law that
permissions granted for one specific user, particularly
residential, cannot be altered or violated without securing
due permission from the competent planning authority. In
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the present case, the petitioner has brazenly undertaken
commercial construction, raised six shop premises, and let
them out for rental income,all under the pretext of
carrying out minor repairs. Such a blatant misuse of a
residential licence cannot be condoned. Both the
respondent-authority and the appellate authority have
appropriately exercised their jurisdiction in issuing the
demolition order and confirming the same. The spot
inspection conducted by the municipal officials, the
findings thereof, and the petitioner's own admissions leave
no room for doubt. Accordingly, this Court is of the view
that no leniency or equitable indulgence can be shown to
the petitioner, as the unauthorized construction
constitutes a clear violation of the provisions of the Act
and established building norms.
9. The reliance placed by the learned counsel for
the petitioner on the decision rendered in M.P.
Ramachandrachar v. Commissioner, Mysore City
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Corporation, Mysore1 is wholly misplaced and
inapplicable to the facts and circumstances of the present
case. In the said decision, the factual matrix pertained to a
situation where the owner had merely replaced the tiled
roofing with RCC roofing, without altering the structural
layout or user of the building. The Hon'ble Court in that
case held that such a change constituted repairs and did
not amount to alteration or addition within the meaning of
Section 321 of the Act. The ratio of that decision is about
limited and non-invasive nature of the work carried out. In
stark contrast, the present case involves not a simple
replacement or reinforcement of existing structures, but a
fundamental and unauthorized transformation of a
residential building into a commercial complex comprising
six distinct shop units. Moreover, the petitioner himself
has openly admitted that these shops were constructed
and let out solely for the purpose of generating rental
income during his post-retirement life. Such a
1996(2) Karl.L.J.312
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transformation of land use and structural character, in
complete disregard of municipal regulations, cannot be
equated to mere repairs as envisaged under the Act.
Therefore, even on the basis of the legal principles
enunciated in the said judgment, the petitioner is not
entitled to any relief or indulgence from this Court.
Accordingly, the point formulated above is answered in the
affirmative.
10. For the foregoing reasons, this Court is of the
view that the writ petition is devoid of merits and
accordingly stands dismissed.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
ALB
