Karnataka High Court
Shankarappa B. Shyadligeri vs The Commissioner on 9 July, 2012
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 9TH DAY OF JULY 2012
BEFORE
THE HON'BLE MR.JUSTICE MOHAN SHANTANAGOUDAR
WRIT PETITION NO. 61010/2012 (LB-UC)
BETWEEN:
Shankarappa B. Shyadligeri
S/O. Late Basappa Shyadligeri
Aged about 68 Years,
R/O. Plot No. 202, Kumareshwar Nagar,
Dharwad-580008.
... Petitioner
(By Sri. Shivaraj.C.Bellakki, Adv.)
And
1. The Commissioner
Hubli-Dharwad Mahanagara Palike
Dharwad, Dist: Dharwad.
2. The Assistant Commissioner
Zonal Office No.3,
Hubli-Dharwad Mahanagara Palike
Dharwad.
... Respondents
(By Sri. G I Gachchinamath, Adv.)
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This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to quash the notice dated
06.02.2012 issued by the respondent no.2 (produced as
Annexure-A) and notice dated 7.2.2012 issued by
Respondent No.1 vide Annexure-B.
This Writ Petition coming on for preliminary hearing in
'B' group this day, the court made the following:
ORDER
Petitioner has sought for quashing the notices Annexures-A and B dated 6.2.2012 and 7.2.2012. He has also sought for a direction to the respondents not to demolish any portion of his building pursuant to the impugned notices. During the pendency of the writ petition, by amending the writ petition, the petitioner has also made a prayer for consideration of his application seeking revised plan sanctioned.
2. The impugned notices reveal that the petitioner has violated the sanctioned plan and has constructed the building. According to the petitioner, the procedure as
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contemplated under Section-321 of the Karnataka Municipal Corporations Act, 1976 ('the Act' for short) is not followed by the respondents and therefore the action taken by the respondents is illegal. It is brought to the notice of the Court by the learned advocate for the petitioner that the portion of the petitioner's building is demolished by the Corporation without giving any scope for the petitioner to approach the Appellate Authority as per law.
Per contra, it is argued on behalf of the respondent - Corporation that number of notices are issued to the petitioner since one year and the petitioner did not stop construction of the building in violation of the sanctioned plan.
3. From the rival contentions, the issue to be resolved is as to whether the petitioner has constructed the building in violation of the sanctioned plan ?
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4. Such a dispute is a question of fact and it cannot be decided by this Court in writ proceedings in the absence of valid documents/evidence on record. The petitioner has to approach the Appellate Authority under Section 443-A of the Act. The Appellate Authority/District Court is the final Court on facts and therefore such issue has to be adjudicated before the Appellate Authority. Only if the Appellate Authority finds that the petitioner had not constructed the building in violation of the sanctioned plan, the petitioner will have to be compensated as per law. In case the petitioner fails to prove that he has not constructed the building as per the sanctioned plan, he is not entitled to any compensation.
5. The respondents ought to have followed the procedure contemplated under Section-321 of the Act before proceeding with the demolition. The Commissioner of the Corporation ought to have made a provisional order
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requiring the owner of the building to demolish the work done, which has been unlawfully executed, or make such alterations as may, in the opinion of the Commissioner, be necessary to bring the work into conformity with the Act, Rules, bye-laws etc., In case if the owner/builder does not show cause to such a provisional order, such order shall be confirmed by passing the final order. Only thereafter such order shall have to be executed as contemplated under the Act. Such a procedure seems to have been not followed by the respondents. The respondent being the State ought not have taken law into their hands by demolishing the building without due process of law. The legal requirement has to be fulfilled by the respondents before taking any action. However, the petitioner is bound to follow the law and he ought not construct the building in violation of the sanctioned plan.
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Be that as it may, since the said question is to be decided by the Appellate Authority, this Court does not want to elaborate on the said point at this point of time.
Accordingly, the following order is made:
It is open for the petitioner to file appeal before the District Judge as per Section 443-A of the Karnataka Municipal Corporations Act, 1976 within four weeks from this date. If such an application is filed, the same shall be considered as per law. In case if the District Judge finds that the petitioner is not at fault and that he has not constructed the building deviating from the sanctioned plan and consequently the respondents have taken illegal action of demolishing such building, it is open for the District Judge to order for payment of compensation to the petitioner suitably.
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In the meanwhile, the petitioner's application for revised the plan shall be considered by the respondents as per law.
With these observations, the writ petition stands disposed of.
Sd/-
JUDGE *gss/-