Karnataka High Court
Gokhale And Anr vs Assistant Commissioner & Ors on 1 September, 2017
Author: S.Sujatha
Bench: S.Sujatha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
WRIT PETITION Nos.204210-211/2017 (LB-RES)
BETWEEN:
1. Gokhale Educational Society
Represented by its Secretary
2. Ankush Gokhale
S/o Lingappa Gokhale
Aged about 40 years
Residing at Teacher's Colony
Humnabad Town
Bidar
...Petitioners
(By Sri Shivamanithan S., Advocate)
AND:
1. Assistant Commissioner
Basavakalyana
Office of Assistant Commissioner
Bidar
2. Tahsildar, Humnabad
Office of Tahsil
Humnabad, Bidar
3. Chief Officer
Town Municipal Council
Humanbad, Bidar
...Respondents
2
(By Sri A. Syed Habeed, Additional Government Advocate for R1
& R2; Sri Gourish S. Kashampur, Advocate for R3)
These writ petitions are filed under Articles 226 and
227 of the Constitution of India, praying to issue a writ or
order or direction to quash or set aside the notice vide
Annexure-AC being the notice issued by the respondent
No.1 dated 08.08.2017 in No.KUM:APPEAL:CR:2017-18,
etc.
These petitions coming on for orders this day, the
Court made the following:-
ORDER
The petitioners have challenged the notice dated 08.08.2017 issued by respondent No.1. The 1st petitioner is the society and the 2nd petitioner is the Secretary of the 1st petitioner-society. It transpires that, the petitioners are running the education institution in the name of Bhagatsingh Higher and Primary School, Humnabad. Accordingly, the petitioners are constructing the school to impart education to the students of Humnabad. In furtherance of the same, the required permission from the 3 office of the Town Municipal Council and other concerned authorities is obtained by the petitioners as contended. The respondent No.1 issued a notice dated 08.08.2017, calling upon the 2nd petitioner to appear before him on 18.08.2017, for an enquiry in respect of violation of approved building permission of ground floor and illegal construction of the 1st and 2nd floor and purchase of plots in the IDSMT layout bearing plot Nos.175, 176, 177, 178, 187, 188, 189, 190, 191, 192 in Sy.No.207 except plot No.188 from houseless and site less persons by Sri Ankush i.e. the 2nd petitioner. Being aggrieved by the said notice, the petitioners are before this Court.
2. The learned counsel Sri Shivamanithan S., appearing for the petitioners submits that the notice issued by the respondent No.1 is without jurisdiction. Hence, the same is illegal. The construction of building falls with the domain of the Town Municipal Council or the Deputy Commissioner. The petitioner has purchased the lands 4 from the legal owners for a reasonable consideration and further obtained necessary permission from the various authorities to setup English Medium school for Class 1 to Class 10. With a malafide intention, respondent No.1 has issued the impugned notice without the authority of law. Hence, seeks for quashing of the said notice.
3. The learned Additional Government Advocate appearing for respondent Nos.1 and 2 would submit that the Government of Karnataka by notification dated 07.02.2014, has delegated the powers conferred by sub- sections (1) and (2) of Section 321 and sub-sections (2) and (3) of Section 388 of the Karnataka Municipalities Act, 1964, whereby, under Section 306(1) of the Act, the power vested with the Town Municipal Council - Assistant Commissioner is delegated to the Assistant Commissioner. In view of the said notification, respondent No.1 has exercised the power in issuing the notice impugned herein. 5
4. The learned counsel Sri. Gourish S. Kashampur, appearing for the respondent No.3 would contend that the petitioners had obtained the license to construct the house, whereas proceeded to construct the school building contrary to the plan and sanction. Further the petitioners have purchased the lands from the houseless and siteless persons, which is prohibited under the law. Hence, the notice issued by the 1st respondent is in accordance with law.
5. Heard the learned counsel for the respective parties and perused the material on record.
6. The short question involved in these writ petitions is in as much as competency of the 1st respondent to issue the impugned notice at Annexure-A.C. The said notice reads thus;
" «µÀAiÀÄB violation of approved Buildings permission of Ground Floor and illegal Construction of 1st Floor and 2nd Floor and purchase of plots in the 6 IDSMT Layout bearing plot No.175 to 177 and Plot no 187 to 192 except Plot no 188 from Houseless and siteless persons by Sri Ankush S/o Lingappa Gokhale Secretary Gokhale Education Society, Humnabad "
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F £ÉÆÃn¹£À MAzÀÄ ¥ÀæwAiÀÄ£ÀÄß ¹éÃPÀj¹ ¢éÃ¥ÀæwAiÀÄ ªÉÄÃ¯É ¤ªÀÄä gÀÄdÄ ºÁUÀÆ ¢£ÁAPÀ £ÀªÀÄÆ¢¹ »A¢gÀÄV¸ÀvÀPÀÌzÀÄÝ."
7. Section 187(9)(a) (B) of the Karnataka Municipalities Act, 1964, reads thus;
" If the Municipal Commissioner or Chief Officer is satisfied,-
(B) is being carried, or has been completed otherwise than in accordance with the plans or particulars on which the permission was granted; he may make a provisional order requiring the owner or the builder to demolish the work done....."7
This power can be exercised only by the Municipal Commissioner or Chief Officer not by the Assistant Commissioner.
8. If the arguments of the learned counsel for the respondent No.3 and the learned Additional Government Advocate, appearing for respondent Nos.1 and 2 is presumed to be correct that the petitioner has violated the building plans, Section 306 of the Act is a general power of the Deputy Commissioner in suspending execution of orders etc. of Municipal Councils. If Section 187(9)(a) of the Act specifically provides for initiating proceedings for violation of the building plans for which the permission was accorded by the Town Municipal Committee, invoking the power of the Deputy Commissioner, now delegated to the Assistant Commissioner under Section 306 of the Act would not arise. Hence, the arguments of respondent cannot be countenanced. Thus, it can be held that the 8 notice issued by the 1st respondent is without authority of law. Accordingly, the same is quashed.
Writ petition is allowed.
Liberty is reserved to the respondent No.3 to proceed in accordance with law.
Sd/-
JUDGE sdu BL