Karnataka High Court
Rangappa Bhovi vs Smt Premila Jayant on 6 February, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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WP No. 24454 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 24454 OF 2019 (LB-RES)
BETWEEN:
RANGAPPA BHOVI
S/O SANNA RANGAPPA BHOVI,
AGED ABOUT 64 YEARS,
R/O 3-30/1 NEKKILA,
ASHOK NAGAR POST,
MANGALURU - 575006.
...PETITIONER
(BY SRI RANGAPPA BHOVI, PARTY-IN-PERSON)
AND:
1. SMT. PREMILA JAYANT
W/O JAYANT,
AGE 51 YEARS,
Digitally signed by ADALITHA MUKTHESAR,
MARIGANGAIAH
PREMAKUMARI SRI NAVADURGAMBIKA TEMPLE,
Location: High
Court of NEKKILA DEREBAIL,
Karnataka
ASHOK NAGAR POST,
MANGALORE - 575006.
2. MR. MOHESH KUMAR
S/O LATE SEENA PUJARY,
AGED ABOUT 48 YEARS,
R/O NEAR NAVADURGAMBIKA TEMPLE,
NEKKILA, ASHOK NAGAR POST
MANGALORE - 575006.
3. THE COMMISSIONER
MANGALURU CITY CORPORATION,
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WP No. 24454 of 2019
CITY CORPORATION BUILDING,
LALBAGH- MANGALURU - 575003.
...RESPONDENTS
(BY SRI P.P.HEGDE, SR.COUNSEL, FOR
MS.RACHITHA RAJSHEKAR, ADV. FOR R1
SRI HAREESH BHANDARY, ADV. FOR R3
R2 -SERVED, BUT UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PARTY-IN-PERSON
PRAYING TO CALL FOR THE ENTIRE RECORDS ON THE FILE OF
THE PRINCIPAL DISTRICT AND SESSION COURT D.K.
MANGALORE NO. MA 25/2017 JUDGMENT DATED 01.01.2019
(ANNEXURE-A) AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Though the matter is listed for orders, with the consent of petitioner - Party-in-Person and learned counsel appearing for the respondents, petition is taken up for final disposal.
2. The petitioner is before this Court under Article 226 of the Constitution of India questioning the correctness and legality of judgment dated 01.01.2019 in M.A.No.25/2017 on the file of the Principal District and Sessions Judge, D.K., Mangalore (Annexure-A); for a -3- WP No. 24454 of 2019 direction to uphold the order dated 28.08.2017 bearing No.£ÀAiÉÆë/¹Dgï 301/1999-2000/J¥sï14, passed under Section 321(3) of the Karnataka Municipal Corporations Act, 1976 Act (for short, 1976 Act); and for a direction to remove the unauthorized construction.
3. Heard the party-in-person Sri.Rangappa Bhovi, learned senior counsel Sri.P.P.Hegde for Smt.Ruchitha Rajshekar, learned counsel for respondent No.1 and learned counsel Sri.Hareesh Bhandary.T., for respondent No.3. Perused the writ petition papers.
4. The petitioner claims that he is a resident of Derebail Village of Mangaluru and residing in the house built in Sy.No.48/8 of Derebail Village. The petitioner submitted a complaint to the third respondent on 04.11.1999 alleging unauthorized and without obtaining licence, construction of temple by respondent Nos.1 and 2 in Sy.No.48/10 and 48/8 of Derebail Village. On the complaint of the petitioner, the third respondent - -4- WP No. 24454 of 2019 Corporation passed provisional order under Section 321(1) and (2) of the Karnataka Municipal Corporations Act, 1976 (for short 1976 Act) and directed respondent Nos.1 and 2 to stop the construction. Thereafter, third respondent passed confirmation order dated 14.11.2000 under Section 321(3) of 1976 Act. The respondent Nos.1 and 2 aggrieved by the confirmation order, filed appeal before the Standing Committee of third respondent. The Standing Committee allowed the appeal by its order dated 16.10.2002. The said order was the subject matter of writ petition in W.P.No.36996/2015 at the instance of the petitioner. This Hon'ble Court by its order dated 19.08.2016, allowed the petition and quashed the order passed by the Standing Committee and directed to issue fresh provisional order and thereafter to pass confirmation order, hearing the parties and proceed with the matter in accordance with law. Thereafter, fresh provisional order was passed under Section 321(1) and (2) of 1976 Act and confirmation order on 28.08.2017 under Section 321(3) of 1976 Act. Aggrieved by the confirmation order, respondent -5- WP No. 24454 of 2019 Nos.1 and 2 preferred appeal in M.A.No.25/2017 under Section 443-A of 1976 Act before the learned Principal District and Sessions Judge, D.K., Mangaluru. Learned Principal District and Sessions Judge, D.K., Mangaluru under the impugned judgment dated 01.01.2019, set aside the confirmation order dated 28.08.2017 and remitted the matter to the respondent No.3 to consider the alleged deviation in construction. Aggrieved by the order of remand, petitioner is before this Court.
5. The petitioner - Party-in-Person would contend that the judgment of the learned Principal District and Sessions Judge is contrary to material on record and submits that temple built by respondent Nos.1 and 2 is unauthorized. Further, it is submitted that respondent Nos.1 and 2 without obtaining licence from the third respondent-Corporation started unauthorized temple building/construction.
6. Party-in-Person would submit that he had filed written notes of arguments and number of documents, but -6- WP No. 24454 of 2019 the learned District Judge failed to look into the written notes of arguments and documents placed on record. It is submitted that the judgment of the Trial Court is perverse and requires to be set aside. It is also alleged that the first and second respondents encroached the pathway and private cart road. Thus, it is prayed to set aside the impugned judgment and to confirm the order passed by third respondent under Section 321(3) of 1976 Act.
7. Learned senior counsel Sri.P.P.Hegde for respondent Nos.1 and 2 would submit that petitioner has not approached this Court with clean hands. He submits that the allegations made by the petitioner are all false and baseless. Learned senior counsel would bring to the notice of this Court the judgment passed in CCC(Criminal) No.11/2008 and submits that petitioner is held guilty of contempt of Court and sentenced for six months and fine of Rs.2,000/- for wantonly and deliberately scandalized the learned sitting Judge of this Court. However, learned senior counsel would submit that no adverse order is -7- WP No. 24454 of 2019 passed against the petitioner. The impugned judgment only remands the matter to the third respondent- Corporation to consider the alleged deviation in construction considering the title deed of respondent Nos.1 and 2 about reserving right of easementary or pathway; as to whether the remaining area would comes within the compoundable, by collecting necessary fine. It is also submitted that the petitioner would get an opportunity before the third respondent while examining the alleged deviation as directed by the Trial Court. Thus, he prays for dismissal of the writ petition.
8. On hearing the party-in-person and learned counsel for the respondents, the only point which falls for consideration is as to, Whether the impugned judgment requires interference?
The answer to the above point would be in the Negative for the following reasons:
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The judgment under challenge remands the matter to consider deviation in construction and about reserving right of easementary or pathway to the petitioner by setting aside the confirmation order passed by third respondent under Section 321(3) of 1976 Act. The Order portion of the judgment reads as follows:
"Appeal filed by the appellants under Section 443A of Karnataka Municipal Corporation Act, 1976 is hereby allowed.
The order dated 23.8.2017 passed by
respondent No.1 in proceedings
No.£À.AiÉÆÃ.«.J¥sï.14:¹.Dgï.:301/99-2000 is hereby
set-aside.
The matter is remitted back to respondent No.1 office to consider alleged deviation in construction in the land of floor area ratio, on going through the title deed of respondent No.2 about reserving right of easementary or pathway and then, to find out as to whether the remaining area wherein construction has been made comes within compoundable, by collecting necessary fine, if the same is not -9- WP No. 24454 of 2019 going to cause inconvenience to any of the neighbours, in the light of the principles laid down in the decision reported in AIR 1989 SC 860, within three months from the date of receipt of this order."
The learned District Judge on going through the entire records was of the opinion that factual aspects have not been taken into consideration while passing provisional and confirmation orders. Learned District Judge is of the opinion that the third respondent-Corporation ought to have examined whether the construction is on the pathway and whether the construction is upon encroached portion. Learned District Judge has also noted that the Government has funded the construction of temple.
9. A perusal of the Provisional and Confirmation order, it is seen that the orders are not speaking orders. The third respondent-Commissioner has culled out the complaint of petitioner and reply of respondent, then proceeded to pass order without assigning proper reasons. Order that would be passed under Section 321 of 1976 Act
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WP No. 24454 of 2019is a Quasi Judicial order. If the Commissioner arrives at a conclusion that construction is unauthorized, then he shall assign proper reasons. From reading of the order under Section 321 of 1976 Act, it would not disclose why the Commissioner has come to the conclusion that construction is unauthorized, how and in what manner it is unauthorized. In the instant case, the main allegation of the petitioner is that construction of temple is unauthorized; without obtaining licence and the construction is on pathway. The Commissioner ought to have given a finding as to whether the construction is after obtaining building licence and if the construction is on obtaining building licence, then what is the deviation from sanction plan and Building Bye-Laws; whether there was any pathway and whether the construction is on the pathway; if the Commissioner comes to a conclusion that building is contrary to sanction plan or Building Bye-Laws; whether the entire building is to be removed or removal of portion of the building would conform to the Building Bye- Laws or sanction plan.
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WP No. 24454 of 2019
10. When the matter is remanded to the Competent Authority under Section 321 of 1976 Act while considering the issue of deviation in construction or right over pathway, the petitioner would be get an opportunity and petitioner could place on record entire material to establish construction is on encroached portion or unauthorized.
The petitioner has not made out any ground to interfere with the remand order.
Accordingly, writ petition stands rejected.
Sd/-
JUDGE MPK/NC.
CT:bms List No.: 1 Sl No.: 5