Karnataka High Court
Sri. Mallikarjun Patil vs State Of Karnataka on 17 September, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC-D:13185
WP No. 104727 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 17TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 104727 OF 2024 (GM-CPC)
BETWEEN:
SRI. MALLIKARJUN PATIL,
AGED ABOUT 60 YEARS, OCC: BUSINESS,
R/O. RS NO.387, CTS NO.4221/8,
OM NAGAR, BELAGAVI-590001.
...PETITIONER
(BY SRI. H.M. DHARIGOND, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY ITS SECERETARY,
MINISTRY OF URBAN DEVELOPMENT AUTHORITY,
M.S. BUILDING, BENGALURU-560001.
SAROJA 2. THE DEPUTY COMMISSIONER,
HANGARAKI
BELAGAVI, DISTRICT: BELAGAVI-590001.
Location: HIGH
COURT OF
KARANTAKA
DHARWAD
BENCH
3. THE COMMISSIONER,
THE BELAGAVI CITY MUNICIPAL CORPORATION,
BELAGAVI-590001.
4. THE TOWN PLANNING AUTHORITY BELAGAVI,
BELAGAVI CITY MUNICIPAL CORPORATION,
BELAGAVI, DISTRICT: BELAGAVI-590001.
5. THE COMMISSIONER,
THE BELAGAVI DEVELOPMENT AUTHORITY,
BELAGAVI, DIST: BELAGAVI-590001.
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NC: 2024:KHC-D:13185
WP No. 104727 of 2024
6. SRI. SURESH
S/O. MOTILAL CHINDAK,
AGED ABOUT 57 YEARS,
OCC: BUSINESS,
R/O. NO.3876D/1, JOSHI MALA,
KASHBHAG, BELAGAVI,
DIST: BELAGAVI-590001.
...RESPONDENTS
(BY SRI. PRAVEEN K. UPPAR, AGA FOR R1 & R2;
SRI. ARAVIND D. KULKARNI, ADV. FOR R3 & R4;
SRI. M.A. HULYAL, ADV. FOR R5;
SRI. SANGRAM S. KULKARNI, ADV. FOR R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED
12-01-2024 PASSED IN MA NO.56/2023 PASSED BY THE VIII
ADDITIONAL DISTRICT JUDGE BELAGAVI VIDE ANNEXURE-A; A
WRIT IN THE NATURE OF MANDAMUS DIRECTS THE RESPONDENT
NO.2 TO 5 TO IMPLEMENT THE ORDER DATED 15-03-2023 PASSED
BY THE 3RD RESPONDENT UNDER NO. MNBE/NYSHA/KP/AKTE/VW-
96/2022-23/S VIDE ANNEXURE-Q AND TO TAKE ACTION FOR
REMOVAL OF THE UNAUTHORISED CONSTRUCTION CONSTRUCTED
BY THE 6TH RESPONDENT AND ETC.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH) Heard the learned counsel for the petitioner and the learned AGA for respondent Nos.1 and 2 and the counsel -3- NC: 2024:KHC-D:13185 WP No. 104727 of 2024 appearing for respondent Nos.3 and 4 as well as counsel for respondent No.6.
2. Learned counsel for respondent No.5 is absent.
3. In the present writ petition the challenge is made praying this Court to quash the order Annexure-A dated 12.01.2024 passed in M.A.No.56/2023 passed by the learned VIII Additional District Judge, Belagavi and also writ of mandamus directing respondent No.2 to 5 implement the order dated 15.03.2023 passed by respondent No.3 vide Annexure-Q any other writ or direction as deems fit in the circumstances of the case.
4. The respondent No.2 in the appeal in M.A.No.56/2023 filed the present writ petition challenging the Annexure-A contending that respondent No.6 being an owner of the land bearing R.S.No.386 measuring 18 guntas has filed an application on 05.11.2015 before the respondent No.2 for conversion of the land from agriculture to non agriculture for use of educational purpose. The respondent No.2 has rejected the application -4- NC: 2024:KHC-D:13185 WP No. 104727 of 2024 on the ground that respondent No.6 has already constructed building illegally and also he has encroached to open site, which is reserved for certain project on 03.02.2016.
5. The respondent No.2 has addressed a letter to the respondent No.5 directs him to submits a report after measuring the total illegal constructed area and also encroached area. Further direction to take necessary steps to remove the encroached area and same is submitted before the office of the respondent No.2 on 16.03.2017.
6. As per direction of the respondent No.2, the respondent No.5 submits a report after conducting spot inspection and stating that the respondent No.6 has encroached and constructed building and road illegally and he has filed affidavit before the respondent No.5, wherein under taking to remove the illegal construction was also unconditionally on 28.04.2017.
7. The respondent No.6 has executed an agreement to the respondent No.2 and stating that he has -5- NC: 2024:KHC-D:13185 WP No. 104727 of 2024 ready for obey/ follow the conditions imposed by the respondent No.2 while passing the order for conversion on 16.05.2017.
8. The respondent No.2 has passed an order converting the land bearing R.S.No.386 measuring 18 guntas from agriculture to non agriculture purpose under certain conditions including one of the condition is that the office of the respondent No.2 with liberty to take necessary action for removing the construction without any compensation, which is illegally constructed by the respondent No.6 in the land bearing R.S.No.386 and any expenses for removing the construction will be recovered from the respondent No.6 as arrears of land revenue.
9. In the general body meeting conducted by the respondent No.5, the respondent No.3 has submits a report stating that there is building illegally constructed by the respondent No.6. Therefore, the general body meeting was passed a resolution stating that the respondent No.3 has got power to remove the illegal construction in -6- NC: 2024:KHC-D:13185 WP No. 104727 of 2024 accordance with law. The committee has approved the layout plan in respect of remaining area except the illegal constructed area on 27.05.2017.
10. The respondent No.5 has rejected the layout plan on the ground that there is a specific direction of the respondent not to approve the portion area of the layout plan on 14.10.2019.
11. The petitioner as well as the general public of Om Nagar have submits a representation before the respondents stating that the respondent No.6 has constructed a building illegally by encroaching upon the proposed CDP road on 02.07.2021.
12. The respondent No.6 is putting up the construction of the building by encroaching upon the proposed CDP road unauthorizedly and the Belagavi Urban Development Authority has requested them to remove the building unauthorizedly constructed by the respondent No.6. In pursuance of the representation, the authorities have also held an enquiry and come to the conclusion that -7- NC: 2024:KHC-D:13185 WP No. 104727 of 2024 the respondent No.6 herein has unauthorizedly constructed a building by encroaching CDP road which is used by the general public of the Om Nagar area. Therefore, the authorities have directing the respondent No.6 to remove the building. Despite of order, not removed the building and the City Project Officer of the City Municipal Corporation, Belagavi has issued notice to the respondent No.6 calling upon him to produce the documents pertaining to the building constructed illegally by encroaching CDP road within 7 days, which is used by the general public of the Om Nagar area on 19.02.2022.
13. The City Project Officer of the City Municipal Corporation, Belagavi has issued notice to the respondent No.6 calling upon him to produce the documents pertaining to the building constructed on 21.03.2022.
14. The respondent No.3 has also passed temporary order under section 321(1) and (2) and same is intimating to the respondent No.6 calling upon him to -8- NC: 2024:KHC-D:13185 WP No. 104727 of 2024 appear before the office of the respondent No.3 along with necessary documents on 06.05.2022.
15. On 18.04.2022 the City Project Officer of the City Municipal Corporation, Belagavi has also issued notice to the petitioner as well as respondent No.6 calling upon them to present at the place of R.S.No.386 on 16.05.2022 at 3.00 clock as without respondents have visited the spot for verification on 06.05.2022.
16. One Sri Santosh S/o Nemanath Kusannavar, who is resident of Om Nagar has filed impleading application in WP No.101099/2022 on 21.06.2022.
17. The City Project Officer of the City Municipal Corporation, Belagavi has issued notice to the petitioner as well as the respondent No.6 calling upon them to appear on 08.07.2022 vide notice dated 30.06.2022.
18. The Court was also pleased to dispose of the writ petition directing respondent No.6 to file statement of objection to the notice dated 19.02.2022 within 15 days -9- NC: 2024:KHC-D:13185 WP No. 104727 of 2024 from the date of order and thereafter respondent No.3 to hear the respondent No.6 as well as the said Sri Santosh S/o Nemanath Kusannavar who is an impleading applicant and proceed to pass an order in accordance with law on 21.09.2022.
19. The City Project Officer of the City Municipal Corporation, Belagavi, has issued notice to the petitioner as well as respondent No.6 calling upon them to present at the place of R.S.No.386 on 16.11.2022 at 12.00 clock as the respondent No.3 has visiting the spot for verification on 09.11.2022.
20. The respondent No.2 has filed objection to the notice dated 19.02.2022.
21. The City Project Officer also issued notice to the petitioner as well as respondent No.6 calling upon them to present in the place and to jointly measure the boundary on 21.11.2022. The said Sri. Santosh also filed contempt petition before this Court on 20.01.2023. During the pendency of the said contempt petition respondent No.3 passed an order under
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NC: 2024:KHC-D:13185 WP No. 104727 of 2024 Section 321(3) of the Karnataka Municipal Corporation Act, 1976 and directed the respondent No.6 to remove the unauthorized construction within seven days and if he fails to remove the same, the respondent No.3 has to remove the illegal construction through staff on 15.03.2023. The respondent No.6 has filed an appeal and challenged the order dated 15.03.2023 before the Principal District and Sessions Judge. The petitioner has appeared and filed the detail written arguments. The Court without application of mind assigning any cogent reasons allowed the appeal and set aside the order passed by the respondent No.3 and hence, the present writ petition is filed before this Court.
22. The brief contentions of the counsel appearing for the petitioner before this Court is that relying upon the Annexure-A to Annexure-S contend that the First Appellate Court ought not to have set aside the order and impugned order is illegal and the very material clearly discloses having inspected the spot that the CDP area was unauthorizedly by encroaching the respondent No.6 constructed the building and even inspite of they given an undertaking also he did not remove the same and the Appellate Court set aside the order.
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NC: 2024:KHC-D:13185 WP No. 104727 of 2024
23. Per contra, the learned counsel appearing for the respondent No.6 would vehemently contend that the First Appellate Court rightly considered the material on record and the objections filed by them are not considered inspite of this Court in the writ petition given direction to consider the same and to that affect in paragraph discussing detail and passed the order and this Court cannot find fault in the order of the First Appellate Court.
24. The learned counsel appearing for respondent No.3 would contend that the statement of objections is filed as per Annexure-P2 and only temporary order was passed earlier and subsequently final order passed and even while passing the Annexure-Q in detail discussed the same that there is a encroachment and also spot inspection was made and even in the spot inspection comes to know that there is a clear violation of the encroachment and illegal construction of the same and hence, the order impugned passed by the First Appellate Court is also erroneous and ought not to have passed such an order.
25. Having heard the petitioner's counsel and also the counsel for the respondents it is not in dispute that the
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NC: 2024:KHC-D:13185 WP No. 104727 of 2024 respondent No.6 has filed writ petition before this Court in WP No.101099/2022 and this Court also allowed the said writ petition by order dated 21.09.2022 wherein, liberty is given to the respondent No.6 to file statement of objections to the said notice and also direction was given to the respondent No.2 to hear the petitioner as well as impleading applicant i.e., said Santosh and thereafter, proceed to pass appropriate order in accordance with law and time bound period was also mentioned about two months and also directed the respondent No.2 not to precipitate the matter for a period of 15 days from the date of passing of the order.
26. The learned counsel appearing for the petitioner also brought to notice of this Court that statement of objections was filed by the respondent No.6 as per Annexure-P2.
27. Having perused the Annexure-P2 as well as impugned order at Annexure-Q though reference was made that respondents sought time to file statement of objections and also the respondent No.6 filed statement of objections before the planning authority on 01.10.2022 and when this Court also given a direction to file statement of objections and
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NC: 2024:KHC-D:13185 WP No. 104727 of 2024 given opportunity to both the parties and on perusal of Annexure-Q no where discussed with regard to the statement of objections filed by the respondent No.2 as per Annexure-P2 and no reference at all.
28. However, discussed in detail with regard to the making out spot inspection on different dates even postponing the spot inspection and conducting of spot inspection on 29.11.2022 in the presence of officials of corporation and parties and except relying upon the spot inspection report nothing has been discussed with regard to the statement of objections filed by the respondent No.6 as per Annexure-P2 and passed an order.
29. The Appellate Court also when the same was challenged in MA No.56/2023 in detail discussed in paragraph No.13 with regard to the direction given by this Court and comes to the conclusion that ought to have given an opportunity to the respondent and the order has been passed in clear violation of principles of natural justice and particularly the Appellate Court comes to the conclusion that the respondent No.1 has passed the impugned order which has
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NC: 2024:KHC-D:13185 WP No. 104727 of 2024 caused injustice to him and it is also noticed that what is the actual portion to be demolished which is alleged to be illegal construction and the order passed appears to be mechanical error even the respondent No.1 has not followed the directions given by this Court.
30. I have already pointed out that the statement of objections filed by the respondent No.6 as per Annexure-P2 was not considered. There is a force in the contention of counsel appearing for the respondent No.3 that ought not to have quashed the order in entirety and ought to have remanded the matter to consider the same and pass fresh order considering the statement of objections filed by the respondent No.6 and there is a force in the contention of learned counsel appearing for respondent No.3 also and the very contention of the petitioner's counsel that the impugned order passed by the Appellate Court is erroneous cannot be accepted when the statement of objection has not been considered by the respondent authority while passing an order at Annexure-Q and when such being a case, it requires interference of this Court and in view of the directions already given by this court in the earlier writ petition. When the
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NC: 2024:KHC-D:13185 WP No. 104727 of 2024 Appellate Court find fault with non consideration of the same, it is appropriate to set aside the order passed in MA No.56/2023 and instead of quashing the entire order passed in Annexure-Q, it is appropriate to quash the order annexure-Q and also to remand the matter for fresh consideration in view of the observations made by this Court that to consider the objections filed by the respondent No.6 also and pass appropriate order.
31. With this directions writ petition is disposed off. The same could be considered within a period of two months from the date of receipt of certified copy of this order.
32. The petitioner counsel is directed to produce the copy of the order before the Appellate Court forth with to enable the respondent to take decision within the stipulated period.
Sd/-
(H.P.SANDESH) JUDGE SSP: Para 1 to 20 SMM: Para 21 to end CT-MCK List No.: 1 Sl No.: 22