Karnataka High Court
Sri Yallapa S/O Laxman Jadhav vs The Commissioner on 6 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC-D:11131
WP No. 103496 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 103496 OF 2023 (LB-UC)
BETWEEN:
SHRI. YALLAPPA S/O. LAXMAN JADHAV,
AGE: 71 YEARS,
OCC: RETIRED PRIVATE EMPLOYEE,
R/O. SITE NO.50, SY. NO.50,
JADHAV GALLI, SHAHU NAGAR,
BELAGAVI-590010.
...PETITIONER
(BY SRI. MADANGOUDA N. PATIL, ADVOCATE)
AND:
1. THE COMMISSIONER,
BELAGAVI CITY,
CORPORATION, BELAGAVI,
CTS NO.4821/27A, R.S. NO.1005,
NEAR SP OFFICE, SUBHASH NAGAR,
BELAGAVI, KARNATAKA-590016.
2. THE ASSISTANT EXECUTIVE ENGINEER,
GIRIJA A NORTH RANGE-I, BELAGAVI CITY,
BYAHATTI
CORPORATION, BELAGAVI,
Location: HIGH
COURT OF
CTS NO.4821/27A, R.S. NO.1005,
KARANTAKA
DHARWAD NEAR SP OFFICE, SUBHASH NAGAR,
BENCH
BELAGAVI, KARNATAKA-590016.
...RESPONDENTS
(BY SRI. ARAVIND D. KULKARNI, ADV. FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ORDER QUASHING THE ORDER OF DEMOLITION
BEARING NO.MANABE/SAKAAA/UVI-1/VWA/2022-23/1317 DATED
25.05.2023 VIDE ANNEXURE-U ISSUED BY THE RESPONDENT NO.1.
THIS PETITION, COMING ON FOR DICTATING ORDERS, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
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NC: 2024:KHC-D:11131
WP No. 103496 of 2023
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH) Heard the petitioner's counsel and the counsel appearing for the respondents.
2. In this writ petition invoking the Articles 226 and 227 of Constitution of India prayed to issue a writ of certiorari or order quashing the order of demolition bearing No.MANABE/SAKAAA/UVI-1/VWA/2022-23/1317 dated 25.05.2023 vide Annexure-U by the respondent No.1 and to pass such other order deemed fit in the circumstances in the case.
3. The factual matrix of the case of the petitioner in the petition that the son of the petitioner had purchased the suit land paid the tax to the respondents from the year 2004. The son of the petitioner executed a gift deed and petitioner made an application for construction of building but respondents did not consider the same for 60 days. Thereafter the petitioner made an application before the Standing Committee, but the standing committee was not -3- NC: 2024:KHC-D:11131 WP No. 103496 of 2023 there, as such the petitioner constructed the building in the year 2018. The respondent No.2 issued notice calling upon the petitioners and his tenants to remain present in his office. Pursuant to the notices, the petitioner was present in the office of respondents but the respondents did not take the matter for hearing and on 02.12.2019 the matter was posted for hearing but on that day, the respondents came to the suit property, gave threat of demolition. Hence, the petitioner filed a suit in O.S.No.1248/2019 before III Addl. Civil Judge and JMFC, Belagavi for declaration and injunction. A copy of the plaint is marked as Annexure-P. The Petitioner filed IA No II in OS No 1248/2019 for temporary injunction, initially granted temporary Injunction and subsequently rejected. Against the said rejection, the petitioner preferred Misc. Appeal No.05/2019 before the Principal Senior Civil Judge & CJM, Belagavi and the said appeal came to be allowed granting temporary injunction restraining the respondent No.1 herein from demolishing the structure over suit land without following due process of law as contemplated -4- NC: 2024:KHC-D:11131 WP No. 103496 of 2023 under the provisions of the Karnataka Municipal Corporation Act, 1976 (for short, 'the KMC Act') till disposal of suit. The copy of the judgment in Misc. Appeal No.05/2019 dated 24.09.2021 by the Prl. Senior Civil Judge and CJM-Belagavi is produced at Annexure-R. However, the respondent No.2 issued demolition notice dated 30.07.2022 vide Annexures-N to N2 to the petitioner and tenants of the petitioner. Against the said notice, the petitioner and other tenants filed W.P.No.102921/2022 before this Court. This Court disposed of the said writ petition observing to treat the referred notice as show cause notice and directed to submit objections. Accordingly, the petitioner filed objections. The first respondent without considering the objections filed by the petitioner, passed the order dated 25.05.2023 vide Annexure-U to demolish the building constructed by the petitioner and hence, this Writ Petition.
4. Counsel for the petitioner would vehemently contend that invoking Section 288D of KMC Act passed the -5- NC: 2024:KHC-D:11131 WP No. 103496 of 2023 impugned order which is erroneous and Section 288D of the KMC Act will not pressed into service of the respondents. The counsel would also contend that the respondents have not followed the due process of law as contemplated in the KMC Act and passed the order arbitrarily, illegally and without following the principles of natural justice and the same is contrary to the order passed in Misc. Appeal No.05/2019. The counsel would contend that the petitioner has completed the construction of RCC building and after verifying and scrutinizing the legality and validity of the building permission, the HESCOM has sanctioned electricity to the suit property. When the respondents did not consider his application for building permission within 60 days, he proceeded to construct the building and under what provision of law, the respondents have issued notice to the petitioner. The petitioner has been paying the tax to the respondents since 2004. The respondents received the tax without any objections. Hence, issuance of demolition order by the first respondents is bad in law. The proceedings initiated -6- NC: 2024:KHC-D:11131 WP No. 103496 of 2023 at the instance of the persons having ill-will against the petitioner. It is also contended that petitioner who is residing in the suit property along with his family members made resistance to the illegal acts undertaken by the respondents. The counsel relied upon photographs which have been produced along with the petition and also contend that gift deed is produced as Annexure-L with regard to his title is concerned. The counsel also relied upon Annexure-M for having paid tax and photographs at Annexures-M8, M9, M-10 and M11. To record the location of the building which he has constructed, the counsel also relied upon the notice at Annexure-L and N series. The copy of the plaint is produced as Annexure-P. The counsel would also rely upon the document of extract of master plan and referring this document, the counsel would contend that there is no encroachment as contended by the respondents. Hence, issuing Annexure-U invoking Section 288A of the KMC Act is bad in law. The counsel brought to the notice of this Court the Section 288D of the KMC Act and contend that the said section clearly discloses -7- NC: 2024:KHC-D:11131 WP No. 103496 of 2023 that the Commissioner may without notice remove the encroachment. The counsel also relied upon the judgment dated 04.01.2024 decided by the Co-ordinate Bench of this Court in the case of M. Chandrashekhar Vs. Commissioner1 and contend that while answering point No.4 this Court held that even if no sanctioned plan is obtained in the event of therebeing no violation or deviation from the Building Bye-laws, the respondent authorities could after collecting necessary fees issue necessary building plans/sanction plan to enable the regularization of the said building directing to make payment of property tax along with due penalty from the date of on which the construction was made without obtaining the plan sanction. He further relied on the judgment in the case of Smt. Satyavva vs. Hubli Dharwad Municipal Corporation by its Commissioner2and contend that Section 288-D of the Act cannot be pressed into service for taking possession of the 1 (2024) 2 KCCR 1048 2 ILR 2011 KAR 2004 -8- NC: 2024:KHC-D:11131 WP No. 103496 of 2023 land in unauthorized occupation of the petitioners and sought to allow the writ petition.
5. Per contra, counsel for the respondents vehemently contend that in the petition in paragraph 1 itself it is contended that the vide document dated 28.05.2004 the erstwhile owner namely, Smt. Lalit Prabhavati W/o. Basavaraj Desai conveyed all that part and parcel of the then open space i.e., an area measuring east-west towards north 43 feet+West towards South 39.6" feet/2 X North-South towards East 20.3" feet + North-South towards West /2 totally ad measuring 832 sq feet out, of R. S No.50 Paiki situated at Kangrali B.K, Taluka and District Belagavi now known as Shahu Nagar, Belagavi within the boundaries thereof in favour of son of the Petitioner namely., Shri. Sachin S/o Yallappa Jadhav and pursuant to the sald conveyance the said Shri. Sachin S/o Yallappa Jadhav became the owner of the purchased property and was exercising his lawful right, title and interest over the purchased property and he is in actual -9- NC: 2024:KHC-D:11131 WP No. 103496 of 2023 physical possession of the purchased property. Counsel referring the paragraph 1 would contend that in order to prove the conveyance made by the erstwhile owner, nothing is placed on record. Counsel would further contend that Section 288D is invoked since there is an encroachment and the petitioner has not produced any title document with regard to the property and the petitioner is not having right in respect of the property and not title deed is produced before this Court except the created document of gift deed. Hence, question of invoking Section 321 of the KMC Act does not arise. The counsel would vehemently contend that the suit is also filed by the petitioner and at the first instance status quo order was granted and later rejected. Against the same, Miscellaneous Appeal was filed by the petitioner and while granting the order it was made clear that injunction shall not be an obstacle for the authorities to demolish the structure by following due process of law by according opportunity to the plaintiff and also conducting proper survey to fix the encroachment, if any. The counsel would
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NC: 2024:KHC-D:11131 WP No. 103496 of 2023 contend that the petitioner has failed to produce any document with regard to his claim is concerned and without any title, the petitioner has encroached the road portion. The counsel would rely upon the document which clearly discloses that construction is made in the road portion as per Annexure-S. The report of the ADLR has also been secured wherein it is reported that the building comes within 24 meters of the road and encroachment has also notified through the ADLR and then only Annexure-U is issued after confirmation of the encroachment. Hence, Annexure-U cannot be quashed. Hence, the contention of the petitioner that invoking Section 288D cannot be accepted. In support of his arguments, the counsel would rely upon the judgment in the case of K. Vasudeva and others vs. the Corporation of City of Bangalore and Others3 and in the case of Nama Krishnaiah Vs. Bruhat Bengaluru Mahanagara Palike, Bengaluru and another4.
3 ILR 2001 KAR 4973 4 2016 (6) KLJ 287
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NC: 2024:KHC-D:11131 WP No. 103496 of 2023
6. Having heard the petitioner's counsel and counsel appearing for the respondents and taking note of the material available on record i.e., Annexures, it is noticed that while passing the impugned order, a reference is made that 80 feet road is unauthorisedly encroached and constructed the building. The respondent No.1 while passing the impugned order, considered the objections filed by the residents of Shahu Nagar dated 21.06.2018, 17.06.2019 and 05.11.2019 and so also taken note of the order passed in Misc. Appeal No.5/2020 dated 24.04.2021, taken note of the report of the ADLR dated 18.06.2022, taken note of the letter dated 25.07.2022 and also the letter dated 30.07.2022, the order passed by this Court in W.P.No.1029212022 dated 02.08.2022 so also the letter dated 05.09.2022 and memo of citations dated 12.09.2022 and 19.09.2022 filed by the counsel for the petitioner and passed the order invoking Section 288D of the KMC Act. In the operative portion of the order, came to the conclusion that in R.S.No.50/2, 80 feet road which is approved plan and reserved for public use, encroached
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NC: 2024:KHC-D:11131 WP No. 103496 of 2023 illegally and constructed the building and the same is ordered to demolish. Having considered the provisions under Section 288D it is very clear that the Commissioner may without notice remove the encroachment. This Court while dismissing the W.P.No.102921/2022 filed by the petitioner herein has observed that the writ petition is premature and ordered to treat the notice issued by the respondent No.2 as show cause notice and directed the petitioners to submit a reply to the show cause notice within a period of 14 days from the date of the said order and the respondent No.2 after considering the reply, if any, filed by the petitioners, pass appropriate orders within a period of one month from the date of receipt of reply.
7. Having perused Annexure-U, it is noticed that no abrupt order is passed by the respondents even there is a provision under Section 288D that the Commissioner may remove encroachment without notice.
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NC: 2024:KHC-D:11131 WP No. 103496 of 2023
8. It is important to note that the judgment relied upon by the counsel for the petitioner in Smt. Satyavva's case (supra) it is held that Section 288D of the Act is not applicable to the facts of the case because the petitioners are not in occupation of any wall, fence, rail, step, booth or other structure or fixture which causes obstruction in public streets or any stall chair, bench, box ladder, bale or any other thing whatsoever prohibited under Sections 288- A and 288-B of the Act. The discussion is made in paragraph 10 that the above provision is not applicable to the present case because the petitioners are not in occupation of any wall, fence, rail. step, booth or other structure or fixture which causes obstruction in public streets or any stall chair, bench, box ladder, bale or any other thing whatsoever prohibited under Sections 288-A and 288-B of the Act. Sub-Section (c) of Section 288-D has also no application to the facts of this case. The petitioners are in occupation of the land reserved for park in that case. Section 288-D of the Act cannot be pressed into service for taking possession of the land in
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NC: 2024:KHC-D:11131 WP No. 103496 of 2023 unauhotised occupation of the petitioners. Thus, the order at Annexure-R-6 dated 27.1.2011 and the impugned notices have been issued without jurisdiction. Though the Slum Clearance Board has issued notices under Section 3(1) of the Slum Area(Improvement and Clearance) Act, 1956 dated 19.12.2001, no further action has been initiated in furtherance of the said notice.
9. In the judgment relied upon by the counsel for respondents in the case of K. Vasudeva, paragraph 16 reads as under:
"16. The Corporation has got the statutory duty to general public including residents of the Corporation under the provisions of the Act of 1976 to remove such unauthorised occupants or their encroachment including structures but it upon the Conservancy Lane by any person including the petitioners otherwise, the corporation would be subjected to the litigation that can be initiated by the public at large for the inaction of the corporation in not discharging their statutory duties of removing unauthorised occupation or encroachment of public street claiming the damages against the corporation for infringement of their fundamental and statutory rights before the competent Civil Court or this Court, for the inaction on the part of respondents in not
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NC: 2024:KHC-D:11131 WP No. 103496 of 2023 taking appropriate action for removal of the unauthorised occupation and encroachment of the conservancy lane by the petitioners including the structures put up by them this Court has to examine and interpret the provision of Section 288-D of the Act of 1976 keeping in view the definition of public street as per Section 2(31) of the Act of 1976 and also the law laid down by the Apex Court in the cases referred to supra. The petitioners claim that they are entitled for grant of issuance of a writ of mandamus to respondent- Corporation and its employees directing them to take possession of the property in question with due process of law contending that they have been in possession and enjoyment of their respective premises cannot be taken away by forcible dispossession without following the due process of law, as the same is not only opposed to law and blatant violation of Rule of law. Their contention that their possession is settled possession and therefore they shall not be dispossessed forcibly in support of the contentions the learned Counsel have placed reliance upon the Judgments of the Apex Court reported in AIR 1968 SC 620, 1924 PC 144 and other judgments which are referred to in the Division Bench Judgment of this Court reported in C. BHASKAR vs STATE OF KARNATAKA and therefore it is urged that they shall not be evicted forcibly from their respective premises in view of the law declared by Privy Council and the Apex Court upon which the reliance is placed by the petitioners cannot be accepted by this Court in view of the law laid down by the Apex Court in the Judgments referred to supra and in view of the finding
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NC: 2024:KHC-D:11131 WP No. 103496 of 2023 recorded by me in the earlier paragraphs of this order holding that respondent-Corporation has got power under Section 288-D of the Act without resorting to the provisions of Sections 4 and 5 of the Act of 1974 and Rules thereunder, and evict, remove their unauthorised occupation and encroachment without issuance of notices to the petitioners for the reason that between these two Acts. General provisions, under Section 288-D of the Act of 1976 must prevail over the special provisions of the Act of 1974."
(emphasis supplied)
10. The petitioner's claim that he is entitled for grant of issuance of writ of certiorari to quash the demolition order. The counsel for respondent referring the judgment referred supra contended that the building is constructed in the road portion of the property and there is encroachment and hence, the Commissioner has duty bound to remove the encroachment.
11. Having considered the principles laid down in the judgment referred by the petitioner's counsel wherein claim is made that the petitioners were in the occupation of the area and also in the judgment referred by the
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NC: 2024:KHC-D:11131 WP No. 103496 of 2023 petitioner in M. Chandrakumar's case (supra) is a case where the property belongs to the petitioners. However, there was only allegation that without obtaining sanction plan and without any building permission, constructed a compound wall and quashed the impugned order and answered the concerned point accordingly but in the present case, nothing is placed on record to substantiate that property belongs to the petitioner. Only an unregistered gift deed is produced which does not convey any title. In the present case, it is contended that though an application was given for sanction plan, decision was not taken within 60 days and the petitioner proceeded to construct the building. The counsel appearing for respondents brought to the notice of the Court that the representation is given when the stage of construction is reached to the plinth level and not before starting the construction and page 6 of the letter which has been produced by the petitioner along with memo dated 19.06.2022. On perusal of page 6 discloses that an application was made when the construction was reached
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NC: 2024:KHC-D:11131 WP No. 103496 of 2023 plinth level and to contend that application was not considered, no such document is placed before this Court and thus the petitioner proceeded to construct the building after expiry of 60 days. Hence, the said contention cannot be accepted.
12. The judgment of this Court in the case of K. Vasudeva (supra) held that if it is unauthorized encroachment, no question of issuance of notice so also in the judgment of Nama Krishnaiah (supra), it has been held that on the ground that the petitioner obtained sanctioned plan from the competent authority and has registered the sale deed itself will not enable the petitioner to take stand that his portion of property cannot be demolished. Here is a case of Public Street and also when such being the case, very contention of the petitioner cannot be accepted that the order impugned under Annexure-U is bad in law. Having perused Annexure-U and as I have already narrated above that the respondent No.1 upon taking into note of all the materials and keeping
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NC: 2024:KHC-D:11131 WP No. 103496 of 2023 in mind the order passed by the civil Court in M.A.No.5/2019 and after granting sufficient opportunity to produce the title of the property, passed the order. When such being the case, there is no material to show that the petitioner is the owner of the property and he had constructed the building even without any sanction plan and if the said order is quashed the very formation of legal bodies and functioning of local bodies would curtail the right and particularly the power given under Section 288D of the Act and hence, such being the case, I do not find any error committed by the respondent No.1 in passing the said order in terms of Annexure-U. Hence, I do not find any merit in the petition to quash Annexure-U when the reference is also made with regard to memo filed by the petitioner along with citations dated 12.09.2022 and 19.09.2022 and even following the observation of this Court made in W.P.No.102921/2022 and after giving sufficient opportunity as directed by this Court the order is passed which does not require any interference exercising
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NC: 2024:KHC-D:11131 WP No. 103496 of 2023 the power under Article 226 and 227 of the Constitution of India. Hence, there is no merit in the writ petition.
13. In view of the discussion made above, I pass the following:
ORDER Writ Petition is dismissed.
Sd/-
(H.P.SANDESH) JUDGE NAA CT-MCK List No.: 1 Sl No.: 75