Karnataka High Court
Sri Vali Ahamed Sheriff vs The Commissioner on 28 November, 2018
Author: S.Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION No.53139/2018 (LB-RES)
Between:
1. Sri Vali Ahamed Sheriff,
S/o Late H.M.Abdul Samad Sheriff,
Aged about 75 years.
2. Sri Nayeem Ahamed Sheriff,
S/o Sri Vali Ahamed Sheriff,
Aged about 45 years.
3. Sri Shaquib Ahamed Sheriff,
S/o Sri Vali Ahamed Sheriff,
Aged about 43 years.
4. Smt.Huda Farheen,
D/o Sri Vali Ahamed Sheriff,
Aged about 41 years.
5. Smt.Suleha Shareen,
D/o Sri Vali Ahamed Sheriff,
Aged about 39 years.
All are residing at No.3308,
C/o Malnad Driving School,
Shariff Colony, H.N.Pura Road,
Hassan - 573 201. ...Petitioners
(By Sri. Madhusudhan M.N., Advocate)
2
And:
1. The Commissioner,
Hassan City Municipal Council,
N.R.Circle,
Hassan - 573 201.
2. The Assistant Executive Engineer,
Hassan City Municipal Council,
N.R.Circle,
Hassan - 573 201. ... Respondents
(By Sri. A.Ravishankar, Advocate for C/R-1)
This Writ Petition is filed under Articles 226 & 227
of the Constitution of India, praying to quash the
impugned order dated 22.11.2018 passed by the R-1
produced vide Annexure-F and etc.
This Writ Petition coming on for preliminary
hearing, this day, the Court made the following:
ORDER
The petitioner has assailed the order dated 22.11.2018 passed by the first respondent as per Annexure-F whereby the first respondent after having issued notice to the petitioners has observed that there were certain violations and has passed an order for removal of the northern portion of the building and that construction which falls within the six meters set back 3 area was required to be removed and that essential amenities including sewage, electricity and water connections would be disconnected. The said order has been passed in terms of Section 187(9)(a)* of the Karnataka Municipalities Act, 1964 (for short "the Act").
2. The petitioner contends that the said order is in the nature of a final order and if the same is executed the petitioner will be put to irreparable loss and also the same is in violation of law. The petitioner also contends that no power is conferred to disconnect essential amenities.
3. Counsel for the respondents Sri.A.Ravishankar states that the order is only a provisional order under 187(9)(a)* of the Act and the Writ Petition is premature as the final order is yet to be passed and in fact the order at Annexure-F is passed a notice has been given to enable the owner of the building to show cause as to why the said order could not be confirmed in terms of *Corrected vide chamber order dated 21.12.2018 4 Section 187(9)(c) of the Act and that the procedure prescribed under clauses (c), (d) and (e) would be adhered to. Counsel for the respondent fairly submits that the order at Annexure-F is not a final order and is subject to the procedure as detailed above which would be strictly adhered to.
4. In light of the submissions made by the respondent and having heard the counsel for the petitioner and on perusal of Annexure - F, it is clear that the order at Annexure-F is only a provisional order as per Section 187(9)(a)* of the Act. The petitioner has been afforded an opportunity to show cause as to why the said provisional order may not be confirmed and in light of the submission of the counsel for the respondent, Annexure-F would be followed up with the procedural requirement of clause (b), (c), (d) and (e) strictly in accordance with the procedure prescribed. Hence, the present writ petition is premature. * Corrected vide chamber order dated 21.12.2018 5
5. The order at Annexure - F is to be construed to be an order under Section 187(9)(a) of the Act. The petitioner is at liberty to submit his reply as to why the said order at Annexure-F need *not be confirmed. The respondent - authorities to consider the reply of the petitioner in accordance with the procedure prescribed under Section 187 of the Act. No action as such can be initiated to demolish pursuant to Annexure-F as the same is only a provisional order and yet to be confirmed. While passing an order of confirmation respondent - authorities to examine as to whether they have the power to disconnect the connection relating to water electricity and sewage.
All contentions of the parties are kept open. In terms of the above, petition stands disposed of.
Sd/-
JUDGE RS/* Ct:mhp * Inserted vide chamber order dated 21.12.2018