Karnataka High Court
B Papanna vs State Of Karnataka on 19 December, 2018
Author: S.Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION NO.55222/2018 (LB-RES)
Between:
B. Papanna,
S/o. Late. Bommegowda,
Aged about 86 years,
R/a. Bustenahalli Village,
Boovanahalli Post,
Kasaba Hobali,
Hassan - 573201. ... Petitioner
(By Sri. Lokesh Boovanahalli, Advocate)
And:
1. State of Karnataka
Dept. of Municipalities,
Rep. by its Secretary,
Vidhana Soudha,
Bengaluru - 560 001.
2. Municipal Commissioner and Local Bodies,
City Municipal Council,
Hassan - 573 201.
3. Deputy Commissioner
Hassan - 573 201. ... Respondents
(By Smt.Prathima Honnapura, AGA for R1 & R3 &
Sri.A. Ravishankar, Advocate for R2)
2
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to quash the
notice/order dated 03.12.2018 issued by the R-2 at
Annexure-C; direct the Deputy Commissioner, Hassan/R-3
to consider the representation dated 23.11.2018 vide
Annexure, take suitable action under Section 306 of the
Karnataka Municipalities Act, 1964 so as to acquire the
schedule property in accordance with law before
demolish/acquisition of schedule property at Annexure-H
and etc.
This Writ Petition coming on for preliminary hearing
this day, the Court made the following:
ORDER
The petitioner who is the owner of the building in property No.585 situated at B.M.Road, Hassan has filed the present Writ Petition challenging the order dated 3.12.2018 whereby the second respondent has issued the order dated 3.12.2018 calling upon the petitioner to remove constructed portions said to be within the six meters set back and had further provided that all the essential amenities including electricity, water and drainage facilities would be suspended. The said order has been passed in terms of Section 187(9)(a) of the Karnataka Municipalities Act, 1964 (for short "the Act"). 3
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-C 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 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- C is not a final order and is subject to the procedure as detailed above which would be strictly adhered to. 4
4. In light of the submissions made by the respondent and having heard the counsel for the petitioner and on perusal of Annexure - C, it is clear that the order at Annexure-C 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-C 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.
5. The order at Annexure - C 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-C 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 5 demolish pursuant to Annexure-C as the same is only a provisional order and yet to be confirmed.
6. The petitioner is required to furnish his reply by 27.12.2018 and the petitioner would also be entitled to a personal hearing on the said date. The Municipal - authority is entitled to carry out as spot inspection in the presence of the petitioner and the jurisdictional Town Planning Officer of the Urban Development, Hassan. The date such inspection would be fixed on 27.12.2018 itself.
7. All contentions of the parties are kept open. In terms of the above, petition stands disposed of.
Sd/-
JUDGE RS/KA