Karnataka High Court
Bhamy Vittaldas Shenoy vs Town Panchayat Bantwal on 25 June, 2013
Author: S.Abdul Nazeer
Bench: S. Abdul Nazeer
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF JUNE 2013
BEFORE
THE HON'BLE MR.JUSTICE S. ABDUL NAZEER
WRIT PETITION NO.1345/2010 (LB-RES)
Between:
Bhamy Vittaldas Shenoy,
S/o late Bhamy Gopalakrishna Shenoy,
Aged about 62 years,
R/o Bantwal Main Road,
Bantwal Taluk,
Mangalore District. .... Petitioner.
(By Sri K.N. Phanindra & Smt.Vaishali Hegde, Advs.
For M/s Hegde & Rao, Advs.)
And:
1 Town Panchayat, Bantwal,
Reptd. By its Chief Officer,
Bantwal - 574 211,
D.K. Dist.
2 Sri V. Nagendra B. Baliga,
S/o Vasudeva Baliga,
Aged about 55 yeas,
R/o S.V.School Road,
Bantwal - 574211, D.K. Dist.
2
3 The President,
Town Panchayat,
Bantwal 574 211,
D.K. Dist.
4 The Tahsildar,
Bantwal Tq.,
D.K. Dist.
5 Sri B. Isubu,
S/o Sri Pakeerabha,
Aged about 41 years,
(Shop No.4-103, Ground Floor),
R/o Saralpade House,
Jakri Bettu Village,
Bantwal Tq., D.K.
6 Sri Mohamad Riyaz,
S/o Sri Ahmed,
Aged about 29 years,
(Shop No.4-104, Ground Floor),
M.F.Manzil, R/o Madhava,
Near Parlia,Bantwal Mooda-Vill,
Bantwal, D.K.
7 Sri Mohamad Siddique,
S/o Sri Ahmed,
Aged about 26 years,
(Shop No.4-104, Ground Floor),
M.F.Manzil, R/o Madhava,
Near Parlia,Bantwal Mooda-Vill,
Bantwal, D.K.
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8 Sri M. Devappa Shetty,
S/o Sri Somappa Shetty,
Aged about 53 years,
(Shop No.4-104(1), Ground Floor),
Durga Niwasa, Mavantur,
Koila Village, Bantwal Tq., D.K.
9 Sri B.A. Lateef,
S/o Sri D.H.Adam Sahib,
Aged about 32 years,
(Shop No.4-104(2), Ground Floor),
Alameen Manzil, Melkaru,
Pane Mangalore Village,
Bantwal, D.K.
10 Smt. Sunitha S. Jadhav,
W/o Sri Shivaji K.Jadhav,
Aged about 20 years,
(Shop No.4-104(3), Ground Floor),
V.P.Road, Bantwal Kasba Village,
Bantwal, D.K.
11 Sri M. Hameed,
S/o Sri Mohamad Beary,
Aged about 34 years,
(Shop No.4-104(5), Ground Floor),
Matha Hithlu, Vitla, Kasba Village, D.K.
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12 Smt. Selistan Anitha Albukarka,
W/o Sri Phillip Nere D'Souza,
Aged about 24 years,
(Shop No.4-104(6), Ground Floor),
St.Francis Villa, Poki Gudda,
Moodanadugodu Vill,
Bantwal Tq., D.K.
13 Sri Yeshwantha Shetty,
S/o Sri Lakshmana Shetty,
Aged about 32 years,
(Shop No.4-104(19), 1st Floor),
R/o Ajekala, Kinibetu,
Amchadi Village,
Bantwal Tq., D.K.
14 Smt.Manjula Prakash Shenoy,
W/o late Sri G.Prakash Shenoy,
Aged about 31 years,
(Shop No.4-104(31), 3rd Floor),
R/o Jakri Bettu, Bantwal Kasaba Village,
Bantwal Tq., D.K. .... Respondents.
(By Sri Vishwajit Shetty, Adv. For R1 and R3
Sri G.Balakrishna Shastry, Adv. For R2
Sri Nasrulla Khan, HCGP for R4
Notice to R5 to R8, R10 and R14 held sufficient
R9, R11 to R13 served)
---
This Writ Petition is filed under Articles 226 & 227 of the
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Constitution of India, praying to quash the order dated 5.12.2009
passed in appeal No.381/2003-04 by the 1st respondent vide
Annexure 'T', etc.
This Writ Petition coming on for Further Hearing this day,
the Court passed the following:
ORDER
In this case, the petitioner has called in question the validity of the order at Annexure 'T' dated 5.12.2009 in appeal No.381/2004 whereby the first respondent has allowed the appeal filed by the second respondent and set aside the order of the Chief Officer dated 16/19.8.2003.
2. Brief facts necessary for disposal of this case are as under:
The petitioner is the owner of a plot of land bearing Sy.No.131/2 of Bantwal, Kasaba Village. The second respondent has purchased adjoining properties bearing Sy.No.131/8 and 6 131/4B. The second respondent made an application at Annexure 'A' dated 7.2.1998 for grant of licence for construction of a lodge/restaurant thereon in 15 cents of the land in the aforesaid two survey numbers consisting of four floors. The Chief Officer of the first respondent issued a licence as per Annexure 'B' dated 12.2.1998. In the licence, it has been clearly stated that on all the four sides, set back should be left and in the front portion, a distance of 20 feet should be maintained from the middle of the road.
3. The contention of the petitioner is that the second respondent has violated the conditions of licence. He has not left any set back nor he maintained distance of 20 feet from the center of the road in the front portion. The petitioner being the adjoining owner found that the second respondent was putting up construction just abutting the tiled roof of his house. Despite repeated requests, the second respondent failed to leave the set 7 back. Therefore, he issued a notice dated 5.10.1998 calling upon the first respondent to initiate action against the second respondent under Section 187 of the Karnataka Municipalities Act, 1964 ('Act' for short). Consequent upon the notice, the first respondent issued a notice to the second respondent to show cause as to why the licence should not be cancelled. The second respondent failed to respond to the notice. He did not stop the work and proceeded with the construction. Since the first respondent failed to take any action, petitioner filed a writ petition before this Court in W.P.No.36299/1998. This Court by order dated 19.3.1999 directed the first respondent to pass a final order under Section 187 of the Act within three months.
4. Thereafter, the first respondent held spot inspection. However, it failed to take any further action in the matter. Therefore, the petitioner again issued a notice to the first 8 respondent on 12.7.1999 calling upon it to comply with the direction of this Court. Instead of the Chief Officer passing the final orders, the Committee, which was constituted to consider the complaint of the petitioner proceeded to pass final order holding that the second respondent had not put up construction contrary to the approved plan. The petitioner filed a writ petition before this Court in W.P.No.33107/1999 challenging the report of the Committee. This Court quashed the report by order dated 27.1.2000 and remitted the matter to the Chief Officer to reconsider the matter afresh and pass appropriate order in accordance with law.
5. The Chief Officer of the Town Panchayath by his order at Annexure 'E' dated 20.6.2000 expressed his inability to pass the order. Since the Chief Officer failed to comply with the directions of this Court, a contempt case was presented before the Court under Article 215 of the Constitution of India. In the said case, this 9 Court opined that if the order at Annexure 'E' is erroneous, the appropriate course is to challenge the order. Therefore, petitioner once again filed a writ petition in No.8039/2001 challenging the correctness of the order dated 20.6.2000. This Court by its order at Annexure 'F' dated 25.11.2002 quashed the order at Annexure 'E' and remitted the matter to the first respondent for fresh disposal according to law.
6. In terms of the order of this Court, the first respondent issued a notice to the second respondent dated 3.5.2003 to show cause as to why action should not be initiated to remove the unauthorized construction put up by him. The Chief Officer passed an order directing the demolition of the unauthorized construction put up by the second respondent as per the order at Annexure 'G' dated 16/19.8.2003. The second respondent filed an appeal before the third respondent in appeal No.381/2003-04 challenging the said order. In the said case, an interim order was passed staying the 10 operation of the order at Annexure 'G'. The second respondent made an application seeking spot inspection. The petitioner opposed the said application. The third respondent issued a direction on 18.6.2004 for spot inspection to be carried out along with the survey of the property in question through the office of the ADLR. The case was adjourned from time to time. Therefore, the petitioner got issued a notice through his lawyer dated 5.9.2005 calling upon the third respondent to carry out the survey of the properties. Pursuant to the said notice, the third respondent addressed a letter to the ADLR to hold the spot inspection and to prepare a map of the site within two months. Even after four months, no steps were taken. Finally, by an order at Annexure 'H' dated 28.12.2006, the third respondent proceeded to allow the appeal filed by the second respondent by setting aside the order dated 16/19.8.2003 passed by the first respondent. 11
7. The petitioner challenged the said order by filing a writ petition in No.4956/2007 before this Court. This Court allowed the writ petition by an order dated 30.5.2006 and directed the first respondent to pass orders in accordance with law. After the remand, the matter was listed before the 1st respondent on 23.6.2008 and was adjourned from time to time. On 2.7.2008, written arguments were submitted by the petitioner and arguments were addressed by both the parties. The first respondent passed an order dated 5.7.2008 allowing the appeal.
8. This order was again challenged in W.P.No.10956/2008. The first respondent filed a memo before this Court withdrawing the order dated 30.5.2008. Hence, this Court passed an order dated 24.11.2008 directing the 1st respondent to conduct the survey through ADLR and to pass orders after receipt of the survey report within a period of eight weeks. Thereafter, survey was conducted. 12 Finally, the order impugned has been passed allowing the appeal.
9. Respondent Nos.2 and 4 have filed objections.
10. Learned Counsel for the petitioner would contend that the application of the petitioner is for grant of licence for construction of a building in a plot of land measuring 15 cents in Sy.Nos.131/8 and 131/4B. The licence was granted by the first respondent on 12.2.1998. The second respondent has put up construction by violating the sanctioned plan. He has not left set backs as per the plan. The second respondent has successfully thwarted the action being taken against the violation of the building plan. It was unnecessary for the third respondent to decide as to whether there is an encroachment of the land or not. He cannot decide the title dispute in relation to the property. The third respondent has to consider as to whether the final order passed by 13 the first respondent at Annexure 'G' is in conformity with law or not? Since the first respondent found that the construction is in violation of the sanctioned plan, final order has been passed under Section 187 of the Act.
11. It is further argued that during the pendency of this writ petition, this Court passed an order on 25.6.2010 by directing the Jurisdictional Tahsildar, with the assistance of a competent Engineer to visit the building in question and to prepare a report as to the existing state of affairs with reference to the sanctioned plan and the construction as it exists and to identify the deviations from the building plan, if any, and the extent of such deviation in complete detail. In response to the said direction, the Tahsildar has filed a report dated 23.7.2010 stating that on the western side of the building, the second respondent has not left set back and that encroachment has been made by him. The second respondent has 14 filed objections to the said report. It is argued that since the building is constructed contrary to the sanctioned plan, the illegally constructed portion of the building should be demolished.
12. On the other hand, learned Counsel appearing for the second respondent sought to justify the impugned order. It is submitted that the third respondent should not have decided the title dispute of the property or the encroachment as he has no jurisdiction to decide the same. He should have decided as to whether the construction made by the second respondent is in accordance with the sanctioned plan or not? He further submits that the matter may be remitted to the third respondent for fresh disposal according to law.
13. At this stage, learned Counsel for the petitioner submits that the illegal construction made by the petitioner is contrary to the 15 sanctioned plan dated 24.1.1998. The matter has come to this Court several times and it was remanded to the authorities for fresh disposal. Therefore, the matter may not be remanded again and that a decision may be rendered on merits.
14. There is substance in the submission made by the learned Counsel for the petitioner. The records would reveal that the litigation between the parties has started from the year 2002. The licence for construction was issued on 12.2.1998. When the petitioner found that the second respondent is constructing the building in violation of the sanctioned plan, he has issued notice on 5.10.1998 calling upon the first respondent to initiate action against the second respondent under Section 187 of the Act. The matter was kept pending for years together by the first respondent at different stages. The issue was whether the second respondent has constructed the building in violation of the sanctioned plan. The second respondent has dragged on the matter by adopting 16 delaying tactics at every stage of the proceedings. The first and the third respondent decided the title dispute without authority of law. It was unnecessary for them to decide the question as to whether the second respondent had encroached the property or not. The matter has come to this Court several times. It is pending for the last 15 years. I am of the view that the case has to be decided on merits instead of remanding the matter to the third respondent.
15. The licence issued for construction of the building to the second respondent is at Annexrue 'B'. Learned Counsel for the first respondent has produced a copy of the sanctioned plan, which was issued on 24.1.1998. The plan delineates the boundary of 15 cents of land of the second respondent and also the building to be constructed in the said land. As per the plan, on all the sides, the second respondent has to leave set back. As per the byelaws, a minimum of 1.5 metres should be left as a set back on all sides. 17
16. According to the petitioner, the second respondent has failed to leave the set back on all the sides of the building. Therefore, he has initiated action for removal of the construction made contrary to the plan. In fact, he had issued notice at the initial stage to stop construction of the building without leaving the set back as early as on 5.10.1998. Instead of stopping the construction, respondent No.2 proceed to construct the building in brazen defiance of law. After several orders of this Court, a provisional order under Section 187 was passed by the first respondent on 26.3.2003. The said order was confirmed as per Annexure 'G' dated 16/19.8.2003. It is clear from the order that the second respondent has not constructed the building in accordance with the sanctioned plan on the western side. Therefore, he was called upon to bring the building in conformity with the plan, failing which action would be initiated against them. The appellate authority reversed the said order. The matter came before this Court in 18 W.P.No.12527/2009. The case was disposed of on 21.10.2009 with the following observations:
"4. Despite specific directions from the Court in every round of litigation, the Town Municipal Council and the Chief Officer of the first respondent are not complying the directions issued by this Court. In every proceedings that are culminated before this Court, specific directions were issued, but they are not followed by the first respondent. Further, the dispute between the petitioner and the second respondent is pending for more than a decade without attaining any finality. Therefore, a specific direction is hereby issued to the first respondent to pass appropriate orders in accordance with law and within a time frame."
17. The third respondent has not even obeyed this order. He has passed the order at Annexure 'T', which in my opinion is totally opposed to law. This Court by order dated 25.6.2010 19 directed the Tahsildar, with the assistance of a competent Engineer to visit the building in question and prepare a report as to the existing state of affairs with reference to the sanctioned plan. The said interim order is as under:
"Having regard to the long drawn out proceedings as between the petitioner and respondent No.2, who has successfully thwarted any action being taken against alleged violation of the building plan and inspite of several rounds of writ proceedings before this Court, there is no end in sight nor any finality being achieved in the proceedings, primarily since there is a serious tussle between the parties as to the correct position insofar as the alleged violation of the building plan is concerned. Hence, in order to have an independent source of opinion as to the violation, if any, in the construction of the concerned building, it is found necessary to direct the jurisdictional Tahsildar who shall with the assistance of a competent Engineer 20 visit the building in question and to prepare a report, as to the existing state of affairs with reference to the sanctioned plan and the construction as it exists and to identify the deviations from the building plan, if any, and the extent of such deviation in complete detail. The petitioner shall bear the expenses, if any, in this regard. The Tahsildar shall place the respective parties on notice of such spot inspection and shall carry out such spot inspection in their presence and a detailed report in this regard shall be submitted to this Court within a period of four weeks, if not earlier.
The Counsel for the petitioner shall furnish a complete set of papers to the Government Advocate to enable him to dispatch the same along with a copy of this order to the concerned Tahsildar to take further steps.
Call after five weeks."21
18. In obedience of the said order, the Tahsildar has filed his report dated 23.7.2010 along with a sketch. A copy of the said report has been filed along with a memo dated 9.11.2011. The relevant portion of the report is as under:
"The Commercial Complex has been constructed as per the approved plan and leaving a set back of more than 1.5 metres at the northern as well as in the eastern sides of the building in the Sy.No.131/4B. But there is no set back left in the western side of the building and there is an encroachment been done by the respondent Sri V.Nagendra Baliga, which is shown in the attached sketch and the encroached area is shown by red colour mark between the petitioner and the respondent's property. This is for your kind perusal."
(emphasis supplied) 22
19. It is evident from the said report that petitioner has constructed the commercial complex without leaving the set back on the western side of the building. This report is in conformity with the confirmation order passed by the first respondent under Section 187 of the Act at Annexure 'G'. The objections filed by the second respondent to this report of the Tahsildar is without substance. Since the second respondent has constructed the building violating the sanctioned plan, the illegally constructed portion of the building has to be demolished.
20. On 11.9.2012, learned Counsel for the second respondent made a submission that after construction of the building, some of the shops in the building have been sold by the second respondent to the third parties. Therefore, he was directed to furnish the particulars of the persons in whose favour the shops have been sold along with the copies of the sale deeds. Learned Counsel for the second respondent has filed a memo giving the 23 particulars of the purchasers of different portions of the building in question on its western side. He has also produced copies of the sale deeds along with the memo evidencing the sale of the shops. Therefore, the purchasers were impleaded as respondent Nos.5 to
14. Notices have been served on them. However, they have failed to appear before this Court.
21. As noticed, there is a clear violation of the plan sanctioned by the Panchayath while constructing the building in question. The second respondent has violated the sanctioned plan with impunity. He has tried to bring the title dispute into these proceedings which has nothing to do with the case. Every effort has been made to drag on the proceedings. At this stage, it is apposite to quote a passage from the decision of the Hon'ble Supreme Court in PRATIBHA CO-OPERATIVE HOUSING SOCIETY LTD.
AND ANOTHER VS. STATE OF MAHARASHTRA AND OTHERS - AIR 1991 SC 1453, which is as under:
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"Before parting with the case we would like to observe that this case should be a pointer to all the builders that making of unauthorised constructions never pays and is against the interest of the society at large. The rules, regulations and bylaws are made by the Corporations or development authorities taking in view the larger public interest of the society and it is the bounden duty of the citizens to obey and follow such rules which are made for their own benefits."
22. In DIPAK KUMAR MUKHERJEE VS. KOLKATA MUNICIPAL CORPORATION AND OTHERS - 2012 AIR SCW 5463, the Apex Court has observed that in the last four decades, the menace of illegal and unauthorized constructions of buildings and other structures in different parts of the country has acquired monstrous proportion. After considering various decisions, it is held as under:
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"Illegal and unauthorized constructions of buildings and other structures not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorized constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan, zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi stories structure raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the 26 power corridors."
23. The Supreme Court has allowed the appeal as under:
"28. In the result, the appeal is allowed and the impugned judgment is set aside. With a view to ensure that the illegal construction raised by respondent No.7 is pulled down without delay, we issue the following directions:
1. Within three months from today, respondent No.7 shall pay the price of the flats etc. to the purchasers with interest @ 18% per annum from the date of payment.
2. The occupiers of illegal/unauthorized construction shall vacate such portions of the building within next one month.
3. Within next one month, the Corporation shall demolish unauthorized construction after taking 27 adequate precautionary measures.
4. Respondent No.7 shall pay cost of Rs.25,00,000/- for brazen violation of the sanctioned plan and continuance of illegal construction despite 'stop work notice'. The amount of cost shall be deposited with the Kolkata State Legal Service Authority within three months and the same be utilized for providing legal aid in deserving cases."
24. I am of the view that the order passed by the third respondent at Annexure 'T' cannot be sustained and the order at Annexure 'G' requires to be confirmed. At the same time, the purchasers of illegally constructed building should be compensated by the second respondent.
25. In the light of the above discussions, I pass the following:
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ORDER
(i) The order at Annexure 'T' dated 5.12.2009 passed by the third respondent is hereby quashed and the order at Annexure 'G' dated 16/19.8.2003 passed by the first respondent is hereby restored.
(ii) Respondent No.2 shall pay the proportionate price of the illegally constructed portion on the western side of the building in question to respondent Nos.5 to 14 with interest at 18% per annum from the date of payment within a period of three months from the date of receipt of a copy of this order.
(iii) The occupiers of the illegally constructed shops on the western side of the building, namely, respondent Nos.5 to 14 shall vacate such portions of the building within a period of four months from the date of receipt of a copy of this order.
(iv) Within next one month, the first respondent is directed to demolish the unauthorized/illegally constructed area on the 29 western side of the building after taking precautionary measures.
(v) Respondent No.2 shall pay the cost of litigation at Rs.25,000/- to the petitioner within a period of three months from the date of receipt of a copy of this order.
(vi) Writ petition is accordingly allowed. No costs.
Sd/-
JUDGE.
BMM/-