Karnataka High Court
K Suresh Pai vs The Chief Officer on 12 March, 2024
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2024:KHC:10002
WP No. 2274 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 2274 OF 2024 (LB-RES)
BETWEEN:
K. SURESH PAI,
S/O LATE K. HARI PAI,
AGED ABOUT 74 YEARS,
OPP. UNION BANK, SALMARA,
KARKALA - 574 104,
UDUPI DISTRICT.
...PETITIONER
(BY SRI. CHANDRAKANTH ARIGA K., ADVOCATE)
AND:
1. THE CHIEF OFFICER,
TOWN MUNICIPAL COUNCIL,
Digitally
KARKALA - 574 104,
signed by UDUPI DISTRICT.
ANAND N
Location:
HIGH 2. SRI. PUNDALIKA PAI,
COURT OF
KARNATAKA AGED ABOUT 66 YEARS,
S/O NAGESH PAI,
OPP. UNION BANK,
NEAR KVP OIL MILL,
KARKALA - 574 104,
UDUPI DISTRICT.
...RESPONDENTS
(BY SRI. PRASANNA V R., ADVOCATE FOR R1;
SRI.RAKSHITH KUMAR, ADVOCATE FOR C/R2)
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NC: 2024:KHC:10002
WP No. 2274 of 2024
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO DIRECT THE R1
TO IMPLEMENT ITS ORDER/NOTICE DATED 20.12.2023
IN KPS.STAFF.C.R.2023-2024 ANNEXURE - L; DIRECT
THE R1 TO DEMOLISH THE UNAUTHORIZED
CONSTRUCTION ON LAND IN SY.NO.147/1P2 OF
KARKALA TOWN AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner and the second respondent are the owners of neighboring properties. The petitioner contends that the second respondent has put up the second floor in contravention of the plan sanctioned, and the petitioner relying upon the first respondent's order dated 20.12.2023 [Annexure 'L'] seeks direction to this respondent to demolish the unauthorized construction put up by the second respondent in his property.
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NC: 2024:KHC:10002 WP No. 2274 of 2024
2. Sri Rakshith Kumar and Sri Prasanna V R, the learned counsels for the respondents, resisting this petition on the ground of alternative remedy, submit that the petitioner must necessarily avail remedy under Section 322 of the Karnataka Municipalities Act, 1964 [the Municipalities Act]. Sri Chandranath Ariga K, the learned counsel for the petitioner, is heard in the light of this canvass and the peculiarities of the case.
3. The first respondent has issued building licence and sanctioned plan to the second respondent, and these are cancelled. According to the second respondent, the concerned Junior Engineer has visited his property when Stability Certificate dated 15.11.2023 is filed, and the first respondent, based on the report filed by the Junior Engineer and in consideration of the Stability Certificate, has restituted the building licence and sanctioned plan. The first respondent further -4- NC: 2024:KHC:10002 WP No. 2274 of 2024 contends that in terms of the relevant bylaws he is entitled to construct building measuring 8.60 meters in width, but while granting building licence and sanction plan at the first instance, the width of the construction sanctioned is wrongly mentioned as 7.30 meters.
4. Sri Chandranath Ariga K, while disputing the error relied upon by the second respondent and the revised plan, contends that the construction is contrary to the bylaws and that the whole effort is to justify an illegal construction. However, Sri Chandranath Ariga does not dispute that the petitioner's grievance can be considered under Section 322 of the Municipalities Act and the petition can be disposed of reserving liberty to avail such remedy.
5. Further, the learned counsels for the parties are heard on whether the second respondent -5- NC: 2024:KHC:10002 WP No. 2274 of 2024 must be permitted to occupy the second floor until the petitioner avails remedy under Section 322 of the Municipalities Act. This question is considered in the circumstances in which the original plan is revised and the petitioner's contention that such revision could not have been granted. This Court is of the considered view that the balance of interest will be ensured if the second respondent is directed not to occupy the second floor of the Building for a period of eight [8] weeks from today within which time the petitioner can avail the alternative remedy as aforesaid and seek interim protection. This Court must also observe that if the petitioner avails such remedy and makes a request for interim order, the authority concerned must examine the merits of such request independent of the arrangement provided for and strictly in accordance with law and in the facts and circumstances of the case.
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NC: 2024:KHC:10002 WP No. 2274 of 2024 The petition stands disposed of accordingly.
SD/-
JUDGE YKL List No.: 1 Sl No.: 17