Sri. M Kotreshappa S/O Mudukanavara ... vs The Chief Officer on 22 July, 2021

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Karnataka High Court

Sri. M Kotreshappa S/O Mudukanavara ... vs The Chief Officer on 22 July, 2021

Bench: H.T.Narendra Prasad

                              1




            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

           DATED THIS THE 22nd DAY OF JULY 2021

                            BEFORE

      THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD

         WRIT PETITION No.102550/2021 (LB-RES)

BETWEEN:

1.    SRI. M KOTRESHAPPA
      S/O MUDUKANAVARA SHIVANANDAPPA
      AGE. 63 YEARS, OCC. PENSIONER,
      R/O. D.NO.381, 7TH WARD,
      SRI. VEERABHADRESHWARA NILAYA,
      MEGALAPETE, HARAPANAHALLI TOWN,
      DIST. VIJAYANAGAR 583131.

2.    SRI. M MRUTHYUNJAYA
      S/O MUDUKANAVARA SHIVANANDAPPA
      AGE. 60 YEARS, OCC. PENSIONER,
      R/O. D.NO.381, 7TH WARD,
      SRI. VEERABHADRESHWARA NILAYA,
      MEGALAPETE, HARAPANAHALLI TOWN,
      DIST. VIJAYANAGAR 583131.

3.    SRI. M MALLAMMA
      W/O MUDUKANAVARA SHIVANANDAPPA
      AGE. 82 YEARS,OCC. HOUSEHOLD,
      R/O. D.NO.381,7TH WARD,
      SRI. VEERABHADRESHWARA NILAYA,
      MEGALAPETE,HARAPANAHALLI TOWN,
      DIST. VIJAYANAGAR 583131.
                                           ...Petitioners
(By Sri S M KALWAD, ADV.)

AND

THE CHIEF OFFICER
TOWN MUNICIPAL COUNCIL,
HARAPANAHALLI,
TQ. HARAPANAHALLI,
                               2




    DIST. VIJAYANAGAR 583131.
                                        ......Respondent

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
OR ORDER OR QUASHING IN THE NATURE OF WRIT OF
CERTIORARI TO QUASH THE IMPUGNED NOTICE DT.07/07/2021
MADE IN NO.PU.SA.HHALLI /KAM.SHA/LOKAYUKTA/ CR-10/2017-
18 ISSUED BY THE RESPONDENT, (ANNEXURE-Q) AS BEING
ILLEGAL AND VOID.

     THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:

                          ORDER

In this writ petition, the petitioners are challenging the notice dated 07.07.2021 issued by the respondent vide Annexure-Q.

2. The case of the petitioners is that, they are the owners of house property bearing No.1072 situated at Megalapet, Harapanahalli town, Vijayanagar district. On 10.12.2007, as per Annexure-C, the petitioner No.3 has filed an application seeking permission for alteration of the residential property. Since the application is not considered and no permission is granted even after one year of the claim of the petitioners, there is deemed permission under Section 187(6) of the Karnataka Municipalities Act, 1964 3 ('the Act' for short). The petitioners have made alteration to the residential property situated in property bearing No.1072 and they are regularly paying property tax. When things stood thus, the respondent without authority of law has issued impugned notice Annexure-Q. Being aggrieved by the same, the petitioners are before this Court.

3. Sri S M Kalwad, learned counsel appearing for the petitioners has contended that the petitioners are the owners of house property bearing old No.1072 and new No.381. Since the petitioners require to make some alteration to the residential house, they applied for permission to respondent on 10.12.2007. Since no permission has been granted, in view of Section 187(6) of the Act it is deemed to be granted. Hence the petitioners have made alteration in the year 2008. Since the petitioners have not violated any provision of law, respondent without authority of law has issued impugned notice Annexure-Q. Hence, he sought for allowing of the writ petition.

4. Heard the learned counsel for the petitioners. Perused the writ papers.

5. There is a challenge in this writ petition to the notice issued by respondent vide Annexure-Q dated 07.07.2021 directing the petitioners to vacate the property in dispute within seven days. If they fail to do so, the Authority will initiate proceedings under Section 187(9) of the Act. Under Section 187(9) of the Act, if the Authority comes to the conclusion that the petitioners have violated any provision of law that they are constructing, reconstructing or erecting any of the building without any permission, they have to pass provisional order. Thereafter they have to serve provisional order to that owner of the property and issue notice requesting him to show cause within reasonable time. Thereafter the Chief Officer has to pass confirmation order.

6. In the case on hand, the impugned notice specifically states that if the petitioners fail to remove the encroached portion of the property, the respondent will initiate proceedings under Section 187(9) of the Act. 5 Pursuant to impugned notice Annexure-Q, the petitioners have given a reply to the respondent. The respondent is directed to consider the reply submitted by the petitioners and pass order after following the procedure prescribed under Section 187(9) of the Act. Till passing of order under Section 187(9) of the Act, the respondent is directed not to dispossess the petitioners. Accordingly, the above writ petition is disposed off.

All the contentions of the parties are left open.

Sd/-

JUDGE Kgk

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