Karnataka High Court
L A Belur (H.U.F.) vs The Commissioner on 14 December, 2018
Author: S.Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION No.54598/2018 (LB - RES)
Between:
L.A Belur (H.U.F.),
Represented by constituent and
Coparcener Sri. A.L. Belur
S/o. L.A. Belur,
Aged about 44 years,
Shri Lakshminarasimha Complex,
S.J.P. Road, K.R. Puram,
Hassan - 573 201.
Also residing at 501-502,
Keshava C.H.S. Ltd., Building No.2,
Jaya Nagar, Link Road,
Dahisar (E),
Mumbai - 400 053. ... Petitioner
(By Sri. P.S. Rajagopal, Senior counsel for
Sri. Mujtaba H., Advocate)
And:
1. The Commissioner,
Hassan City Municipal Council,
Hassan - 573 201.
2. The Deputy Commissioner,
Hassan District,
Hassan - 573 201. ... Respondents
(By Smt. Prathima Honnapura, AGA for R2;
Sri. A. Ravishankar, Advocate for R1)
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This Writ Petition is filed under Articles 226 and
227 of the Constitution of India praying to call for the
records leading to the issuance of the impugned order
dated 24.07.2018 passed by the R-1 herein vide
Annexure-A and after perusal to quash the impugned
order dated 24.07.2018 passed by the R-1 herein vide
Annexure-A and etc.
This Writ Petition coming on for Preliminary
Hearing in 'B' Group, this day, the Court made the
following:
ORDER
The petitioner being the owner of the property has challenged the order at Annexure-A whereby, there is a direction to remove the alleged illegal construction in accordance with Section 187 of the Karnataka Municipalities Act, 1964 ('the Act' for brevity) and further states that the said removal of illegal construction would be by the Authority and expenses would be recovered from the owner of the property.
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2. The learned Senior counsel appearing for the petitioner states that the order at Annexure-A is in the nature of a final order and advances other arguments as regards the merits of the matter including that certain deviations have already been regularized. However, the learned counsel for the respondents points out fairly that the order at Annexure-A is to be construed to be a provisional order in terms of Section 187(9)(a) of the Act and states that the petitioner pursuant to the provisional order would be afforded an opportunity to show cause as to why the said provisional order is not to be confirmed as per Section 187(9)(b) of the Act.
3. In light of the said submission, the order at Annexure-A, if is to be taken to its logical conclusion, the Authority would have to follow the 4 procedural requirements as provided in Clause b, c, d and e of Section 187 of the Act.
4. The order at Annexure-A being considered to be one under Section 187 (9)(a) of the Act, the petitioner is at liberty to submit his reply as to why the said order is not to be confirmed. The respondent-Authorities are to consider the reply of the petitioner in accordance with the procedure prescribed under Section 187 of the Act.
5. No action as such can be initiated to demolish or remove the deviated construction pursuant to Annexure-A as the same is to be construed as only a provisional order yet to be confirmed. While considering the reply of the petitioner and if the order of confirmation is passed, the question of same is to be done strictly in 5 accordance with the procedure stipulated. In view of construing Annexure-A to be a provisional order, action of sealing of the premises that has been resorted to by the respondent-Corporation is set- aside and the respondent-Authorities after following due procedure is at liberty to proceed with the matter.
6. In light of the above observations, petition is disposed of.
The petitioner states that consequent to the order at Annexure-A, trade licence has been rejected. In view of the construing of Annexure-A to be a provisional order, what action has to be taken as regards Trade licence is a matter to be examined by the Authority in accordance with law. 6
It is made clear that mere passing of a provisional order is not be construed as the bar to the renewal or continuance of a trade licence.
The petitioner is granted two weeks of time to file objections to the order at Annexure-A. The respondent-Authority thereafter, to consider and pass appropriate orders within a period not later than six weeks.
Sd/-
JUDGE SJK