Karnataka High Court
Sri B Radhakrishna Shenoy vs The Commissioner on 12 September, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2023:KHC:33168
WP No. 3878 of 2018
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 3878 OF 2018 (LB-RES)
BETWEEN:
SRI B. RADHAKRISHNA SHENOY
S/O LATE VASUDEVA SHENOY
SINCE DECEASED BY HIS LRS
1 SRI. B. VASUDEVA SHENOY
S/O B. RADHAKRISHNA SHENOY
AGED 48 YEARS,
RESIDING AT HILLGROVE,
2ND CROSS, CHILAMBI,
MANGALURU - 575 006.
...PETITIONER
(BY SRI. KESHAVA BHAT A., ADVOCATE)
Digitally signed
AND:
by
NARAYANAPPA
LAKSHMAMMA 1. THE COMMISSIONER
Location: HIGH MANGALORE CITY CORPORATION
COURT OF LALBAG, MANGALURU-575003
KARNATAKA
...RESPONDENT
(BY SRI HAREESH BHANDARY T., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER OF THE III ADDL. DISTRICT AND SESSIONS
JUDGE, DAKSHINA KANNADA, MANGALURU DAGTED
30.11.2017 IN MISCELLANEOUS APPEAL NO. 86/2012 VIDE
ANNEX-A CONFIRMING THE ORDER OF THE COMMISSIONER,
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NC: 2023:KHC:33168
WP No. 3878 of 2018
MANGALURU CITY CORPORATION DATED 14.09.2012 NO. E4/
BA 60 / 2008-09 VIDE ANNEX-B.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
a. Issue a writ of certiorari or any other appropriate writ, order or direction, setting aside the order of the III Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru Dated 30.11.2017 in Miscellaneous Appeal No. 86/2012 vide Annex-A confirming the order of the commissioner, Mangaluru City Corporation dated 14.09.2012 No. E4/ BA 60/2008-09 vide Annex-B. b. Grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case in the interest of justice.
2. The petitioner is challenging the judgment of the III Additional District and Sessions Judge, Dakshina Kannada, Mangaluru in Misc.Appeal No.86/2012 by virtue of which the challenge made by the petitioner to a confirmatory order under Section 321 (3) Karnataka Municipal Corporations Act, 1976 (for short, 'KMC Act') came to be dismissed. -3-
NC: 2023:KHC:33168 WP No. 3878 of 2018
3. The contention of Sri.A.Keshava Bhat, learned counsel for the petitioner is that:
3.1. There is no notice which had been issued to the petitioner under Section 321 (1) of KMC Act for a confirmation to be made in terms of Section 321 (3) of KMC Act, inasmuch as, the only claim made by the Corporation is that an earlier notice had been issued under Section 308 of KMC Act.
3.2. By relying upon the decision of this Court in the case of M/s.Happy Home Builders (Karnataka) Pvt. Ltd., and others vs. Corporation of the City of Bangalore and others1, he submits that a notice issued under Section 308 of KMC Act is not a substitute for notice required to be issued under Section 321 (1) of KMC Act and as such, without issuing notice under 321 (1) of KMC Act, no 1 AIR 1990 KAR 56 -4- NC: 2023:KHC:33168 WP No. 3878 of 2018 confirmatory order under Section 321 (3) of KMC Act can be passed.
4. Sri.Hareesh Bhandary T., learned counsel for the respondent appearing for the respondent - Corporation, would however submit that:
4.1. The purport and intent of Section 308 and Section 321 of KMC Act is more or less the same inasmuch as the alteration of the work contemplated under Section 308 of KMC Act would also include demolition contemplated under Section 321 of KMC Act and as such, the notice issued under Section 308 of KMC Act would be sufficient compliance with Section 321 (1) of KMC Act. On that ground, he submits that the above petition is required to be dismissed.
5. Heard Sri.A.Keshava Bhat, learned counsel for the petitioner and Sri.Hareesh Bhandary T., learned -5- NC: 2023:KHC:33168 WP No. 3878 of 2018 counsel for the respondent appearing for the respondent and perused the papers.
6. A short question that would arise for consideration in this matter is whether, without the issuance of a notice under Section 321 (1) of KMC Act, could a Confirmatory Order be passed under Section 321 (3) of KMC Act and/or whether a notice issued under Section 308 of KMC Act could be said to be issued under 321 (1) of KMC Act?
7. Section 308 of Karnataka Municipal Corporations Act reads as under:
308. Power of Commissioner to require alteration of work.--(1) If the Commissioner finds that the work,--
a. is otherwise than in accordance with the plans or specifications which have been approved, or b. contravenes any of the provisions of this Act or any rule, bye-law, order or declaration made under this Act, he may by notice require the owner of the building within a period state either,--
(i) to show cause why such alterations should not be made, or -6- NC: 2023:KHC:33168 WP No. 3878 of 2018
(ii) to make such alterations as may be specified in the said notice with the object of bringing the work into conformity with the said plans, specifications or provisions. (2) If the owner does not show cause as aforesaid he shall be bound to make the alterations specified in such notice.
(3) If the owner shows cause as aforesaid the Commissioner shall by an order cancel the notice issued under sub-section (1) or confirm the same subject to such modifications as he may think fit.
8. A perusal of the above would indicate that the Commissioner, if he finds that the works carried out are not in accordance with the plans or specification or contravenes any of the provision of the Act, a notice under Section 308 of KMC Act could be issued to showcase why such alterations should not be made or to make such alteration as may be specified in the notice and in terms of sub-section (3) of Section 308 of KMC Act, the notice issued under sub- section (1) of Section 308 of KMC Act could be confirmed, directing the owner to carry out the works in the manner prescribed or required in the notice -7- NC: 2023:KHC:33168 WP No. 3878 of 2018 issued under sub-section (1) of Section 308 of KMC Act.
9. Section 321 of Karnataka Municipal Corporations Act reads as under:
321. Demolition or alteration of buildings or well work unlawfully commenced, carried on or completed.--(1) If the Commissioner is satisfied,--
(i) that the construction or re-construction of any building or hut or well,--
(a) has been commenced without obtaining his permission or where an appeal or reference has been made to the standing committee, in contravention of any order passed by the standing committee; or
(b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based; or
(c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye-laws; or
(ii) that any alteration required by any notice issued under section 308, have not been duly made; or
(iii) that any alteration of or addition to any building or hut or any other work made or done for any purpose into, or upon any building or hut, has been commenced or is being carried on or has been completed in breach of section 320, -8- NC: 2023:KHC:33168 WP No. 3878 of 2018 he may make a provisional order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Commissioner, 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, directions or requisitions as aforesaid, or with the plans or particulars on which such permission or orders was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well or hut. (2) The Commissioner shall serve a copy of the provisional order made under sub-section (1) on the owner or builder of the building or hut or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed.
(3) If the owner or builder fails to show cause to the satisfaction of the Commissioner, the Commissioner may confirm the order, with any modification he may think fit and such order shall then be binding on the owner.
(4) If the construction or reconstruction of any building or hut is commenced contrary to the provisions of section 300 or 314 and the Commissioner is of the opinion that immediate action should be taken, then, notwithstanding anything contained in this Act, a notice to be given under sub-section (2) shall not be of less duration than twenty-four hours and shall be deemed to be duly served if it is affixed in some conspicuous part of the building or hut to which the notice relates and published by proclamation at or near such building or hut accompanied by beat of drum, and upon such affixation and publication, all persons concerned shall be deemed, to have been duly informed of the matters stated therein.
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10. In terms of Clause (ii) of sub-section (1) of Section 321 of KMC Act, the Commissioner, if satisfied, could issue a notice under sub-section (1) of Section 321 of KMC Act if the notice issued under Section 308 has not been complied with and the alteration not made, which would indicate that in the event of compliance not being made with the confirmatory order under sub-section (3) of Section 308 of KMC Act.
11. It would, therefore mean and require that further notice is contemplated under sub-section (1) of Section 321 of KMC Act detailing out the nature of breaches, if any committed, and the construction or reconstruction which is required to be demolished. Thus, the notice under sub-section (1) of Section 321 of KMC Act, in terms of Clause (ii) thereof, has to be issued after coming to a finding that there is non- compliance with the confirmatory order under sub- section (3) of Section 308 of KMC Act. The notice under Section 308 of KMC Act either under sub-
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NC: 2023:KHC:33168 WP No. 3878 of 2018 section (1) or Sub-section (3) thereof, cannot therefore be in substitution of a notice under subsection (1) of Section 321 of KMC Act. It is subsequent to a confirmatory order passed under sub-section (3) of Section 308 of KMC Act, that a notice under sub-section (1) of section 321 is required to be issued to implement or enforce the demand made in the confirmatory order under sub- section (3) of Section 308.
12. Thus, I am of the considered opinion that a notice under Section 308 of KMC Act is not a substitute for a notice that is required under sub-section (1) of Section 321 of KMC Act. A separate notice under sub-section (1) of Section 321 of KMC Act is required to be issued as a provisional order which can thereafter be confirmed under sub-section (3) of Section 321 of KMC Act if compliance is not made with the aforesaid provisional order.
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NC: 2023:KHC:33168 WP No. 3878 of 2018
13. In the present case, no notice having been issued under sub-section (1) of Section 321 of KMC Act and only a notice under sub-section (1) of Section 308 of KMC Act has been issued which has also not been confirmed by an order under sub-section (3) of Section 308 of KMC Act, the respondent-authority could not have straightaway jumped to a confirmatory order under sub-section (3) of Section 321 of KMC Act which is not permissible.
14. These aspects have not been considered by the III Additional District and Sessions Judge in Dakshina Kannada in Appeal No.86/2012 and the said Court has come to a wrong conclusion that the notice under subsection (1) of Section 308 of KMC Act is sufficient for a confirmatory order under sub-section (3) of Section 321 of KMC Act to be passed, which, as held above, is not the correct interpretation of Law. As such, I pass the following:
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NC: 2023:KHC:33168 WP No. 3878 of 2018 ORDER i. The Writ Petition is allowed, a certiorari is issued.
ii. The order of III Additional District and Sessions Judge, Dakshina Kannada, Mangaluru in Misc.Appeal No.86/2012 at Annexure-A is hereby quashed.
iii. The confirmatory order passed by the Commissioner of Mangalore City Corporation under sub-section (3) of Section 321 of KMC Act, dated 14.09.2012 in No.E4/BA-60/2008-09 vide Annexure-B is quashed.
iv. Liberty is however reserved to the respondents to take further action in terms of the observations made above.
Sd/-
JUDGE PRS List No.: 1 Sl No.: 32