Karnataka High Court
Aleemuddin S/O Qayyum Patel vs Dayanand Patil on 13 July, 2023
Author: B.M. Shyam Prasad
Bench: B.M. Shyam Prasad
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CCC No. 200069 of 2023
C/W WA No. 200089 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE UMESH M. ADIGA
CIVIL CONTEMPT PETITION NO. 200069 OF 2023
C/W
WRIT APPEAL NO. 200089 OF 2023
CCC NO.200069/2023
BETWEEN:
ALEEMUDDIN
S/O QAYYUM PATEL
AGE. 43 YEARS,
OCC. AGRICULTURE AND BUSINESS,
R/O MADINA COLONY, M.S.K. MILL
KALABURAGI 585103
Digitally signed by
...COMPLAINANT
SOMANATH
PENTAPPA MITTE
Location: HIGH
COURT OF
(BY SRI DEEPAK V. BARAD, ADVOCATE)
KARNATAKA
AND:
1. DAYANAND PATIL
THE COMMISSIONER
KALABURAGI URBAN DEVELOPMENT
AUTHORITY
KALABURAGI-585102
2. STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT
M.S BUILDING BENGALURU - 01
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CCC No. 200069 of 2023
C/W WA No. 200089 of 2023
ACCUSEDS
(BY SRI SHIVAKUMAR R. TENGLI, ADVOCATE FOR R/A1;
SRI MALLIKARJUN C. BASAREDDY, GA FOR R/A2)
THIS CCC IS FILED UNDER SECTIONS 11 AND 12 OF
THE CONTEMPT OF COURTS ACT, PRAYING TO INITIATE
CONTEMPT PROCEEDINGS AGAINST THE 1ST ACCUSED
FOR NON-COMPLIANCE OF ORDER OF THIS
HONOURABLE COURT DATED 14.07.2022 PASSED IN WP
NO.201602/2022 AS AT ANNEXURE - E AND PUNISH HIM
IN ACCORDANCW WITH LAW.
WA NO.200089 OF 2023
THE KALABURAGI URBAN DEVELOPMENT AUTHORITY
REPRESENTED BY ITS COMMISSIONER,
KALABURAGI-585 102
... APPELLANT
(BY SRI AMEETKUMAR DESHPANDE, SENIOR ADVOCATE
FOR SRI ANANTH S. JAHAGIRDAR, ADVOCATE)
AND
1. ALEEMUDDIN PATEL,
S/O. QAYYUM PATEL,
AGE: 43 YEARS,
OCC: AGRICULTURE & BUSINESS,
R/O MADINA COLONY,
M.S.K. MILL ROAD,
KALABURAGI-585 102
2. THE STATE OF KARNATAKA,
URBAN DEVELOOPMENT DEPARTMENT,
M.S. BUILDING,
BENGALURU-560 001
REPRESENTED BY ITS SECRETARY
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CCC No. 200069 of 2023
C/W WA No. 200089 of 2023
3. THE DEPUTY COMMISSIONER,
KALABURAGI-585 102
4. THE COMMISSIONER
KALABURAGI MAHANAGAR PALIKE,
KALABURAGI-585 102
... RESPONDENTS
(BY SRI MALLIKARJUN C. BASAREDDY, GA FOR R2 & R3;
SRI DEEPAK V. BARAD, ADVOCATE FOF R1;)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, PRAYING TO ALLOW
THIS APPEAL AND SET ASIDE THE FINAL ORDER DATED
14.07.2022 PASSED IN WP NO.201602/2022.
THE CCC AND THE WRIT APPEAL COMING ON FOR
ORDERS, THIS DAY, B.M. SHYAM PRASAD, J., MADE THE
FOLLOWING:
ORDER
The intra Court appeal is filed calling in question the common order dated 14.07.2022 in WP Nos.201602/2022, which is disposed of with the first respondent's another writ petition in WP No. 202474/2021. The first respondent has filed the writ petition in WP Nos.201602/2022 impugning the Endorsement dated 23.06.2022 issued by the appellant, and the writ petition in WP Nos.202474/2021 for quashing the proceedings initiated by the Regional Commissioner, Kalaburagi pursuant to notice dated 19.11.2021. -4-
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2. The writ Court has disposed of these petitions quashing the Endorsement dated 23.06.2022 and directing the appellant to take necessary steps for the purposes of grant of Single Layout Plan as well as change of land use, and this direction is predicated on the condition that the first respondent shall submit all documents as would be required by the appellant. Further, the writ Court has directed the Commissioner, Kalaburagi Mahanagar Palike to consider the first respondent's application for ex-post-facto permission violation, license and sanction for the construction and building plan. The Commissioner, Kalaburagi Mahanagar Palika has not called this common order dated 14.07.2022 in question.
3. This Court must at the outset record that the writ Court's common order dated 14.07.2022 is in the light of the order dated 30.07.2020 in the first respondent's earlier petition in WP No.226174/2020. The first respondent has filed this writ petition in WP No.226174/2020 impugning the notice/order dated -5- NC: 2023:KHC-K:5301-DB CCC No. 200069 of 2023 C/W WA No. 200089 of 2023 10.07.2020 issued by the Deputy Commissioner, Kalaburagi in exercise of jurisdiction under the provisions of the Karnataka Land Revenue Act, 1964 for demolition of the construction on the ground that the first respondent had utilized agricultural land measuring 2 acres 3 guntas in Survey No.30/1 of Zafarabad Village, Kalaburagi Taluka [the subject land] and District without for non-agricultural purposes.
4. This writ petition in WP No.226474/2020 is ultimately disposed on 30.07.2020 reserving liberty to the first respondent to file an application for diversion of the subject land from agricultural to non-agricultural purposes (commercial purpose) and with further liberty to seek ex- post-facto sanctioned and license to the construction put up in the subject property. This liberty is qualified by the condition that the first respondent shall not undertake any construction or throw open the construction for any public gathering with the further stipulation that the Deputy Commissioner, Kalaburagi, shall not demolish the construction.
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5. It is undisputed that this order dated 30.07.2020 in WP No.226474/2020 is not challenged, and in fact, with the first respondent commencing contempt proceedings in CCC No. 200126/2021 action is taken for grant of diversion as contemplated under Section 95 of the Karnataka Land Revenue Act, 1964, upon an additional cost of Rs.1,00,000/. This cost is in addition to the fee that the first respondent had to pay according to the appropriate regulations.
6. The Regional Commissioner, Kalaburagi has initiated proceedings with the issuance of notice dated 19.11.2021 for cancellation of this diversion order, and the first respondent has filed the writ petition in WP No.202474/20211 impugning this notice dated 19.11.2021. During the pendency of this writ petition, the first respondent, in terms of the liberty granted as aforesaid in WP No.226174/2020, has applied with the appellant for a Single Plot Layout approval, a requirement in law for grant of sanction of the building plan and construction license. 1 One of the two writ petitions disposed of by the impugned order dated 14.07.2022.
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7. This application is kept in abeyance with the issuance of Endorsement dated 23.06.2022 referring to the pending proceedings in WP No.202474/2021. The first respondent has filed the writ petition in WP No.201602/20222 impugning this Endorsement dated 23.06.2022, and further, the first respondent, because his application for Single Plot Layout is not considered despite the common order dated 14.07.2022, has commenced present contempt proceedings. It appears that almost in response to the notice issued in these contempt proceedings, the present appeal is filed calling in question the common order dated 14.07.2022.
8. Sri Ameet Kumar Deshpande, the learned Senior Counsel who appears for Sri Ananth S. Jahagirdar, and Sri Shivakumar R. Tengli, the learned counsels for the Commissioner, the Kalaburagi Urban Development Authority in the corresponding writ appeal and contempt proceedings, and Sri Deepak V. Barad, the learned counsel for the 2 The other of the two writ petitions disposed of by the impugned common order dated 14.07.2022 -8- NC: 2023:KHC-K:5301-DB CCC No. 200069 of 2023 C/W WA No. 200089 of 2023 complainant - the first respondent, are heard for final disposal of the appeal and the contempt proceedings upon perusal of the records.
9. Sri Ameet Kumar Deshpande submits that the writ Court could not have directed the appellant to take necessary steps for the purpose of grant of Single Layout Plan or change in land use in view of the provisions of Sections 14 and 17 of the Karnataka Town and Country Plan Act, 1971. He argues that it is mandatory for every owner of an immovable property to obtain license and sanction to construct a building inasmuch as the interdiction in law is that there should not be any construction contrary to the zonal regulations and the provisions of Section 17 thereof does not in express terms provide for ex-post-fact approval.
10. It would be suffice for this Court to observe that this submission cannot prevail in the peculiarities of this case where, after construction is commenced, certain orders have been passed for diversion of change in land use after -9- NC: 2023:KHC-K:5301-DB CCC No. 200069 of 2023 C/W WA No. 200089 of 2023 the culmination of the proceedings in WP No.226474/2020. These orders have not been called in question, and in fact, it is stated that after the impugned order dated 14.07.2022, the office of the appellant has forwarded a recommendation dated 14.12.2022 to the Government for grant of change in land use and the State Government, based on such proposal, has granted change in land use by its order dated 29.03.2023. If the different compliances are already granted ex-post-facto, this Court is not persuaded, as said in the peculiarities of this case, to opine that the process begun must be truncated quashing the impugned order dated 14.07.2022. It must be observed that the proposition canvassed is rendered moot for the present case though may be available for consideration in appropriate set of circumstances in other cases.
11. This Court is also engaged on the first respondent's conduct in beginning the construction of a "Function Hall" without taking any permission whatsoever and with the initiation of proceedings, beginning the exercise of securing the necessary permission; of course, subject to
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NC: 2023:KHC-K:5301-DB CCC No. 200069 of 2023 C/W WA No. 200089 of 2023 the condition that this hall shall not be used or so open to the public purpose. The question would be whether writ Court could have directed the appellant in the back drop of the respondents' case to consider the application for change in land use and grant single plot approval without imposing any cost.
12. Sri Ameet Kumar Deshpande, and Sri Deepak V. Barad, are heard on this aspect. If Sri Ameet Kumar Deshpande canvasses that this Court must take note of the fact that the first respondent has completed the construction and is now making efforts to put the house in order, Sri Deepak V. Barad submits that after the first order dated 30.07.2020 in WP No.226174/2020 the first respondent has paid every fee that is required for being permitted diversion from agricultural to commercial purposes and for change in land use, and the petitioner is also obliged in law to pay the prescribed fee for grant of single plot approval. The first respondent is also called upon to pay a cost of Rs.1,00,000/- at the time of being permitted diversion of use from agricultural to commercial purposes.
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13. It is obvious that, unless certain proceedings were initiated which constrained the first respondent, he perhaps, would have felt emboldened to use the construction without any approval whatsoever. This could be an indication of a larger malice prevalent amongst many, and there must be some deterrent lest it be that everybody is encouraged to begin construction, and then think of compliance if constrained. This element of deterrence is introduced when a person is called upon to pay substantial cost. In the circumstances of the case, given the extent of land and the nature of construction (a function hall that could accommodate many people and with different facilities such as kitchen and parking), this Court of the considered view that the first respondent must be called upon to pay a cost of only Rs.5,00,000/-(Rupees: Five Lakhs Only). The cost of Rs.5,00,000/-(Rupees: Five Lakhs Only) must be paid to the account of the District Child Protection Officer, the Social Welfare Department, Kalaburagi District within a period of four weeks from today.
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14. Further, the appellant must consider the first respondent's application for sanction of a Single Plot Layout only if proof of deposit of the cost as aforesaid is paid and it shall so consider within a period of four [4] weeks from the date on which the proof of payment of cost is produced. Consequent to this order, the said Department shall use this fund preferably to provide better Toilet facilities (most specifically toilet facilities) in Anatha Shishu Vikas Kendra, Basaweshwara Colony, Kalaburagi. Consequent to this order the contempt proceedings are dropped, but with liberty to move another contempt application if there is failure to consider grant of approval as aforesaid despite the deposit of cost.
The writ appeal and stand disposed of subject to cost as aforesaid.
Sd/-
JUDGE Sd/-
JUDGE SBS List No.: 1 Sl No.: 41