Karnataka High Court
Mr.Shashinand J. Masurkar. vs The City Municipal Commissioner, on 11 January, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF JANUARY 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
W.P.NO.102577/2017 (LB-RES)
BETWEEN:
MR.SHASHINAND J.MASURKAR,
AGED ABOUT 54 YEARS,
S/O SHRI JAYARAM N.MASURKAR,
OCC: ENGINEER, R/O : # 303,
SHRICHAKRA RESIDENCY,
TELIRAMJI STREET, KARWAR-581 301,
TQ: KARWAR, DIST: UTTARA KANNADA.
... PETITIONER
(BY SRI VEERESH R BUDIHAL, ADVOCATE.)
AND:
1. THE CITY MUNICIPAL COMMISSIONER,
KARWAR CITY MUNICIPAL COUNCIL,
KARWAR 581 301, TQ: KARWAR,
DIST: UTTARA KANNADA.
2. THE COMMISSIONER,
KARWAR DEVELOPMENT AUTHORITY,
KARWAR-581 301, TQ: KARWAR,
DIST: UTTARA KANNADA.
3. MR.MAHENDRA RAMDAS PHAYADE,
AGED ABOUT 52 YEARS,
2
W.P.No.102577/2017
OCC: BUSINESS,
R/O NEAR MARUTHI TEMPLE,
KARWAR-581 301, TQ: KARWAR,
DIST: UTTARA KANNADA.
4. MR.ANIL KUMAR PANDURANG NAIR,
AGED ABOUT 62 YEARS,
OCC: BUSINESS,
R/O DHOBI GHAT ROAD,
KARWAR-581 301, TQ: KARWAR,
DIST: UTTARA KANNADA.
5. SMT.ROSALINE GEORGE FERNANDES,
W/O MR.GEORGE FERNANDES,
AGED ABOUT 54 YEARS,
R/O ROSARY DALE, KESHAVE SHET ROAD,
KARWAR-581 301, TQ: KARWAR,
DIST: UTTARA KANNADA.
... RESPONDENTS
(BY SRI S.V.YAJI, ADVOCATE FOR R1 & R.2)
(BY SRI HARSHA DESAI, ADVOCATE FOR R3 TO R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO :
A) TO ISSUE A WRIT IN THE NATURE OF
CERTIORARI AND OR ANY OTHER WRIT OR ORDER AND SET
ASIDE THE ALLEGED CONSTRUCTION PERMISSION
DRAWING VIDE REF NO. NIL DATED NIL (BUT THE DATE OF
DRAWING BEING SHOWN AS 27.04.2015) ISSUED BY THE
RESPONDENT NO.1 NIL, IN SURVEY NO.5E OF BAAD,
KARWAR TALUKA, IN THE NAME OF SHRI MAHENDRA
PHAYADE, SHRI ANIL KUMAR NAIR & SMT. ROSLIN
FERNANDES, I.E., THE RESPONDENTS NO.3 TO 5 HEREIN,
VIDE ANNEXURE-B.
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W.P.No.102577/2017
B) ISSUE A WRIT IN THE NATURE OF MANDAMUS
OR ANY OTHER WRIT DIRECTING THE RESPONDENTS NO.1
AND 2 TO DEMOLISH THE CONSTRUCTION ALLEGED TO
HAVE BEEN CONSTRUCTED IN PURSUANCE OF THE ALLEGED
CONSTRUCTION PERMISSION DRAWING VIDE REF NO. NIL
DATED NIL (BUT THE DATE OF DRAWING BEING SHOWN AS
27.04.2015) ISSUED BY THE RESPONDENT NO.NIL, IN
SURVEY NO: 5E OF BAAD, KARWAR TALUKA, IN THE NAME
OF SHRI MAHENDRA PHAYADE, SHRI ANIL KUMAR NAIR &
SMT. ROSLIN FERNANDES, I.E., THE RESPONDENTS NO.3
TO 5 HEREIN, VIDE ANNEXURE-B.
C) ISSUE A WRIT IN THE NATURE OF MANDAMUS OR
ANY OTHER WRIT DIRECTING THE RESPONDENTS NO.1 AND
2 TO INITIATE APPROPRIATE CRIMINAL ACTION AGAINST
THE RESPONDENTS NO.3 TO 5 AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard.
2. One Sri Sudhir Vinekar was the original owner of the land bearing Sy.No.5D and 5E each measuring 6 guntas 8 annas situated at Baad village of Karwar Taluk. 4 W.P.No.102577/2017 He obtained permission for construction of buildings on both lands in 1997 as per Annexure-A.
3. He got modified that plan and constructed residential apartment in Sy.No.5D only. The petitioner purchased proposed flat No.303 in the said apartment under the registered sale deed dated 11.05.2001 from the original owner, when the building was under
construction.
4. It appears that due to some litigations the original owner could not construct the building on Sy.No.5E. Respondents No.3 to 5 purchased Sy.No.5E from the original owner Sri Sudhir Vinekar under the registered sale deed dated 28.04.2015. 5. After such purchase respondents No.3 to 5 applied for fresh building plan for construction of the building on RS.No.5E. The 1st respondent approved the said plan and issued the building licence as per Annexures-R5 and R6. Annexure-B is the copy of the 5 W.P.No.102577/2017 proposed building plan in respect of Sy.No.5E submitted to the 2nd respondent.
6. The 1st respondent granted the building permission and with the approved plan on 24.09.2015. On 14.03.2017 the petitioner who is the owner of the flat in Sy.No.5D files this petition contending that the building licence and the approval of the plan is contrary to the floor area ratio.
7. Sri Veeresh R Budihal, the learned counsel for the petitioner seeks to assail Annexure-B the certified building plan furnished by the 2nd respondent to him on the following grounds;
a) Once the plan approved, the 2nd respondent has no competence to issue fresh building plan.
b) The building licence and plan are issued in favour of respondents No.3 to 5 without hearing him.
6W.P.No.102577/2017
c) Annexure-B is contrary to the norms of floor area ratio.
8. Sri Veeresh R Budihal, the learned counsel for the petitioner relies on the judgment of the Hon'ble Supreme Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & others (AIR 1999 SC 22).
9. Sri S.V.Yaji, the learned standing counsel for respondents No.1 and 2 and Sri Harsha Desai, the learned counsel for respondents No.3 to 5 oppose the petition on the following grounds.
a) Annexure-B is not sanctioned plan at all.
b) The petition lacks bona fides as the same is filed after respondents No.3 to 5 completing the substantial portion of the construction.
7W.P.No.102577/2017
c) The petition shall fail for delay and latches as it is filed after nearly two years of the sanction of the plan.
d) The petitioner has efficacious alternative remedy of appeal under Rule 3 and revision under Rule 8 of the Karnataka Municipalities (Appeal and Revision) Rules 1967.
10. The writ petition can be entertained if order challenged is passed without competence. Sections 181 to 190 govern the powers of the municipality to regulate the buildings etc. Section 187(1) says that before beginning the construction of the building, or alteration of any existing building, or construction or reconstruction etc., municipal council is empowered to give permission. Sub section (2) of Section 187 says that, no construction or reconstruction referred to in subsection (1) shall begun unless and until 8 W.P.No.102577/2017 permission for the execution of the work is granted under the said section.
11. Indisputably, such permission is granted to respondents No.3 to 5 in this case under Annexure-R5 and 6. The petitioner instead of challenging that, has challenged only copy of the proposed plan Annexure-B issued by the 2nd respondent.
12. Against the order passed by the Municipal Commissioner under Sections 181 and 187 of the Act, an appeal is provided under Rule 3(1) of the Karnataka Municipalities (Appeal and Revision) Rules, 1967 to the municipal council.
13. Under Rule 3(3) of the aforesaid Rules against any of the order passed by the municipal commissioner in exercise of the powers conferred on him under the Act appeal lies to commissioner. Section 2(5) the Karnataka Municipalities Act, 1964 "Commissioner" is defined as Regional Commissioner or other officer 9 W.P.No.102577/2017 appointed to perform the duties of the Commissioner under the Act.
14. So far as the contention that the 1st respondent is not competent to modify the plan issued as per Annexure-R.2, it is to be noted that in 2004, on the requisition of the original owner for modification of the original plan of 1997, the 1st respondent modified the same. On the basis of such modified plan itself, the petitioner's flat is constructed. The petitioner does not produce his sale deed or the completion certificate or occupation certificate to show that he has occupied the premises prior to 2004. The petitioner does not question the competence of the 1st respondent in modifying his own building plan. Even otherwise, Section 187(2) authorizes the 1st respondent to grant permission for construction or reconstruction which implies that the plan submitted for construction can be modified if any reconstruction or alteration is proposed. 10 W.P.No.102577/2017
15. Annexure-R7 dated 20.01.2004 shows that the Government has delegated the powers to the Commissioner of Municipalities granting permission to the building. Thus, there is no merit in the contention that the licence or the sanction of the plan is without competence. Since the 1st Respondent is competent to issue the building permission and plan, the judgment in Whirlpool Corporation's case referred to supra is not applicable.
16. Thus, the petitioner has an efficacious alternate remedy of appeal under Rule 3(1) and (3) of the 1967 Rules. Therefore, reserving liberty to the petitioner to avail the statutory remedy of appeal or revision contemplated under the 1967 Rules, the writ petition is disposed of accordingly.
17. The petitioner shall file such appeal within two weeks from the date of receipt of the copy of this order. The Appellate/Revisional Authority shall dispose of such 11 W.P.No.102577/2017 appeal/revision within 4 weeks from the date of the presentation of the same. All other contentions of the parties are left open.
18. The interim order dated 31.05.2017 passed by this Court shall be in operation till the petitioner files appeal/revision or till two weeks from the date on which the copy of this order becomes ready for delivery to the petitioner, which ever is earlier.
19. In view of the disposal of the writ petition, I.A.No.2/2017 does not survive for consideration and disposed of accordingly.
Sd/-
JUDGE EM/-