Karnataka High Court
Sri V Nagendra B Baliga vs Town Panchayath Bantwal on 15 July, 2014
Author: D.H.Waghela
Bench: D.H.Waghela
W.A.No.6234/2013 c/w
W.A.Nos.6385-6388/2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15TH DAY OF JULY 2014
PRESENT
THE HON'BLE MR.D.H.WAGHELA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE H.G.RAMESH
W.A.No.6234/2013
c/w
W.A.Nos.6385-6388/2013 (LB-RES)
IN W.A.6234/2013:
BETWEEN:
SRI V NAGENDRA B BALIGA
S/O VASUDEVA BALIGA
AGED ABOUT 58 YEARS
R/O S.V. SCHOOL ROAD
BANTWAL - 564 211
D.K. DISTRICT. ...APPELLANT
(BY SRI: G BALAKRISHNA SHASTRY, ADVOCATE)
AND:
1. TOWN PANCHAYAT BANTWAL
REPRESENTED BY ITS CHIEF OFFICER
BANTWAL - 574 211
DAKSHINA KANNADA DISTRICT.
2. BHAMI VITTAL DAS SHENOY
S/O LATE BHAMI GOPALKRISHNA SHENOY
AGED ABOUT 65 YEARS
R/O BANTWAL MAIN ROAD
BANTWAL TALUK
MANGALORE, D.K. DISTRICT.
3. THE PRESIDENT
TOWN PANCHAYAT BANTWAL
BANTWAL - 574 211
DAKSHINA KANNADA DISTRICT.
W.A.No.6234/2013 c/w
W.A.Nos.6385-6388/2013
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4. THE THASHILDAR
BANTWAL TALUK
DAKSHINA KANNADA DISTRICT.
5. SRI B ISUBU
S/O SRI PAKEERABHA
AGED ABOUT 44 YEARS
(SHOP NO.4-103, GROUND FLOOR)
R/O SARALPADE HOUSE
JAKAI BETTU VILLAGE
BANTWAL TALUK, D.K.
6. SRI MOHAMMED RIYAZ
S/O AHMED
AGED ABOUT 32 YEARS
(SHOP NO.4-104 GROUND FLOOR)
M F MANZIL, R/O MADHAVA
NEAR PARLIA BANTWAL MOODA VILL
BANTWAL, D.K.
7. SRI MOHAMAD SIDDIQUE
S/O SRI AHMED
AGED ABOUT 29 YEARS
SHOP NO.4-104 GROUND FLOOR
M F MANZIL
R/O MADHAVA
NEAR PARLIA BANTWAL MOODA VILL
BANTWAL, D.K.
8. SRI DEVAPPA SHETTY M.
S/O SRI SOMAPPA SHETTY
AGED ABOUT 56 YEARS
(SHOP NO.4-104, (1) GROUND FLOOR)
DURGA NIWASA MAVANTUR
KOLIA VILLAGE
BANTWAL TALUK, D.K.
9. SRI B A LATEEF
S/O SRI D H ADAM SAHIB
AGED ABOUT 35 YEARS
(SHOP NO.4-104(2) GROUND FLOOR)
ALAMEEN MANZIL MELKARU
PANE MANGALORE VILLAGE
BANTWAL D.K.
10. SMT SUNITHA S JADHAV
W/O SRI SHIVAJI K JADHAV
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W.A.Nos.6385-6388/2013
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AGED ABOUT 23 YEARS
(SHOP NO.4-104(3) GROUND FLOOR
V P ROAD
BANTWAL KASBA VILLAGE
BANTWAL, D.K.
11. SRI M HAMMED
S/O SRI MOHAMAD BERY
AGED ABOUT 37 YEARS
SHOP NO.4-104(5)
GROUND FLOOR
MATHA HITHUL VITLA
KASABA VILLAGE, D.K.
12. SMT SELISTAN ANITHA ALBUKARKA
W/O SRI PHILIP NERE D'SOUZA
AGED ABOUT 27 YEARS
(SHOP NO.4-104(6) GROUND FLOOR)
ST. FRANCIS VILLA POKI GUDDA
MOODANADUGODU VILLAGE
BANTWAL TALUK, D.K.
13. SRI YESHWANTHA SHETTY
S/O SRI LAKSHMANA SHETTY
AGED ABOUT 35 YEARS
SHOP NO.4-109 (19) I FLOOR)
R/O AJEKALA KINBETU
AMCHADI VILLAGE
BANTWAL TALUK, D.K. DISTRICT
14. SMT MANJUALA PRAKASH SHENOY
W/O LATE SRI G PRAKASH SHENOY
AGED ABOUT 33 YEARS
(SHOP NO.4-104(31), 3RD FLOOR)
R O JAKRI BETTU
BANTWAL KASABA VILLAGE
BANTWAL TALUK
D.K. DISTRICT. ...RESPONDENTS
(BY SRI: K N PHANINDRA AND SMT: VAISHALI HEGDE,
ADVOCATES FOR M/S.HEGDE & RAO
ASSOCIATES FOR R-2;
SRI NARENDAR G, AGA FOR R-1 & R-4)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED
IN W.P.NO.1345/2010 DATED 25.06.2013.
W.A.No.6234/2013 c/w
W.A.Nos.6385-6388/2013
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IN W.A.6385-6388/2013:
BETWEEN:
1. SRI B ISUBU
S/O SRI PAKEERABHA
AGED ABOUT 43 YEARS
(SHOP NO.4-103, GROUND FLOOR)
R/O SARALPADE HOUSE
JAKRIBETTU VILLAGE
BANTWAL TALUK
D.K.DISTRICT-574219.
2. SRI DEVAPPA SHETTY
S/O SRI SOMAPPA SHETTY
AGED ABOUT 56 YEARS
(SHOP NO. 4-104, (1) GROUND FLOOR)
DURGA NIWASA MAVANTUR
KOLIA VILLAGE
BANTWAL TALUK
D.K. DISTRICT.
3. SMT. SUNITHA S JADHAV
W/O SRI SHIVAJI K JADHAV
AGED ABOUT 23 YEARS
(SHOP NO.4-104(3) GROUND FLOOR)
R/AT V P ROAD
BANTWAL KASBA VILLAGE
BANTWAL TALUK
D.K. DISTRICT.
4. SMT. MANJUALA PRAKASH SHENOY
W/O LATE SRI G PRAKASH SHENOY
AGED ABOUT 34 YEARS
(SHOP NO.4-104(31) 3RD FLOOR)
R/O JAKRI BETTU
BANTWAL KASABA VILLAGE
BANTWAL TALUK
D.K. DISTRICT. ...APPELLANTS
(BY SRI: PRASANNA V R, ADVOCATE)
AND:
1. TOWN PANCHAYATH BANTWAL
REP BY ITS CHIEF OFFICER
W.A.No.6234/2013 c/w
W.A.Nos.6385-6388/2013
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BANTWAL-574211
D.K. DISTRICT.
2. SRI BHAMI VITTAL DAS SHENOY
S/O LATE BHAMI GOPALKRISHNA SHENOY
AGED ABOUT 65 YEARS
R/O BANTWAL MAIN ROAD
BANTWAL TALUK
D.K. DISTRICT.
3. SRI V NAGENDRA B BALIGA
S/O VASUDEVA BALIGA
AGED ABOUT 58 YEARS
R/O SCHOOL ROAD
BANTWAL-564211
D.K. DISTRICT.
4. THE PRESIDENT
TOWN PANCHAYAT BANTWAL
BANTWAL-574211
D.K. DISTRICT.
5. THE THASHILDAR
BANTWAL TALUK
D.K. DISTRICT-574219.
6. SRI MOHAMMED RIYAZ
S/O AHMED
AGED ABOUT 32 YEARS
(SHOP NO.4-104, GROUND FLOOR)
M F MANZIL
R/O MADHAVA, NEAR PARLIA
BANTWAL MOODA VILLAGE
BANTWAL TALUK
D.K. DISTRICT-574219.
7. SRI MOHAMAD SIDDIQUE
S/O SRI AHMED
AGED ABOUT 29 YEARS
(SHOP NO.4-104, GROUND FLOOR)
M F MANZIL
R/O MADHAVA
NEAR PARLIA, BANTWAL MOODA VILLAGE
BANTWAL TALUK
D.K. DISTRICT-574219.
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8. SRI B A LATEEF
S/O SRI D H ADAM SAHIB
AGED ABOUT 35 YEARS
(SHOP NO.4-104(2) GROUND FLOOR)
ALAMEEN MANZIL MELKARU
PANE MANGALORE VILLAGE
BANTWAL TALUK
D.K.DISTRICT-574219.
9. SRI M HAMMED
S/O SRI MOHAMAD BEARY
AGED ABOUT 37 YEARS
SHOP NO.4-104(5) GROUND FLOOR
MATHA HITHUL VITLA
KASABA VILLAGE, BANTWAL TALUK
D.K.DISTRICT-574240.
10. SMT. SELISTAN ANITHA ALBUKARKA
W/O SRI PHILIP NERE D'SOUZA
AGED ABOUT 27 YEARS
(SHOP NO.4-104(6) GROUND FLOOR)
ST. FRANCIS VILLA
POKI GUDDA
MOODANADUGODU VILLAGE
BANTWAL TALUK
D.K. DISTRICT-574219.
11. SRI YESHWANTHA SHETTY
S/O SRI LAKSHMANA SHETTY
AGED ABOUT 35 YEARS
(SHOP NO.4-109(19) I FLOOR)
R/O AJEKALA KINBETU
AMTADI VILLAGE
BANTWAL TALUK
D.K. DISTRICT-574219. ...RESPONDENTS
THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN W.P.NO.1345/2010 DATED 25.06.2013.
THESE WRIT APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 17.06.2014, THIS DAY,
H.G.RAMESH J., PRONOUNCED THE FOLLOWING:
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JUDGMENT
1. We deem it appropriate to preface this judgment by referring to the following observations made by the Supreme Court in Dipak Kumar Mukherjee v. Kolkata Municipal Corpn. [(2013)5 SCC 336] and in Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai [(2013)5 SCC 357], before proceeding to examine the five appeals before us:
Dipak Kumar Mukherjee [(2013)5 SCC 336]:
"8. What needs to be emphasized is that illegal and unauthorized constructions of buildings and other structures not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorized constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to the poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi-storeyed structures raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors."
W.A.No.6234/2013 c/w W.A.Nos.6385-6388/2013 -8- Esha Ekta [(2013)5 SCC 357]:
"In the last five decades, the provisions contained in various municipal laws for planned development of the areas to which such laws are applicable have been violated with impunity in all the cities, big or small, and those entrusted with the task of ensuring implementation of the master plan, etc. have miserably failed to perform their duties. It is highly regrettable that this is so despite the fact that this Court has, keeping in view the imperatives of preserving the ecology and environment of the area and protecting the rights of the citizens, repeatedly cautioned the authorities concerned against arbitrary regularization of illegal constructions by way of compounding and otherwise."
2. These five writ appeals are by the building owner and subsequent purchasers of certain shops in the building. All the five appeals are directed against the order dated 25.06.2013 passed by a learned Single Judge of this Court in W.P.No.1345/2010. Writ Appeal No.6234/2013 is by the owner of the building in question and the other four writ appeals are by the purchasers of certain shops in the said building.
3. We have heard learned counsel appearing for the parties, perused the order of the learned Single Judge, the written arguments submitted on behalf of the appellants and also the documents produced along with I.A.No.2/2014 filed in W.A.No.6234/2013.
W.A.No.6234/2013 c/w W.A.Nos.6385-6388/2013 -9- The operative portion of the order of the learned Single Judge reads as follows:
"25. In the light of the above discussions, I pass the following order:
(i) The order at Annexure 'T' dated 5.12.2009 passed by the third respondent is hereby quashed and the order at Annexure 'G' dated 16/19.8.2003 passed by the first respondent is hereby restored.
(ii) Respondent No.2 shall pay the proportionate price of the illegally constructed portion on the western side of the building in question to respondent Nos.5 to 14 with interest at 18% per annum from the date of payment within a period of three months from the date of receipt of a copy of this order.
(iii) The occupiers of the illegally constructed shops on the western side of the building, namely, respondent Nos.5 to 14 shall vacate such portions of the building within a period of four months from the date of receipt of a copy of this order.
(iv) Within next one month, the first respondent is directed to demolish the unauthorized/illegally constructed area on the western side of the building after taking precautionary measures.
(v) Respondent No.2 shall pay the cost of litigation at Rs.25,000/- to the petitioner within a period of three months from the date of receipt of a copy of this order.
(vi) Writ petition is accordingly allowed. No costs."
(Underlining supplied)
4. The main contention urged by the learned counsel for the appellant-building owner in W.A.No.6234/2013 is that the learned Single Judge ought not have decided as to whether the construction put up by the appellant is in W.A.No.6234/2013 c/w W.A.Nos.6385-6388/2013
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violation of the sanctioned plan, but ought to have remitted the matter to the appellate authority, having found that the order of the appellate authority was not sustainable in law. The only other contention is that, no specific finding is recorded by the learned Single Judge as to the extent of violation of the sanctioned plan by stating the measurements.
5. Learned counsel for the appellants in the connected four appeals, who are stated to be purchasers of certain shops in the building in question, reiterated the aforesaid contentions and further submitted that the appellants were not aware of any of the proceedings and were also not served with the notice of the writ petition, and hence, the matter needs to be reconsidered by conducting a fresh survey of the building after notice to them.
6. Having regard to the facts of the case, the only question that needs to be determined in these appeals is as to whether the finding recorded by the learned Single Judge that the construction of the building is contrary to the sanctioned plan warrants any interference?
W.A.No.6234/2013 c/w W.A.Nos.6385-6388/2013
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7. Coming to the contention that the learned Single Judge ought to have remitted the matter to the appellate authority for reconsideration of the matter on merits, we are of opinion that the learned Single Judge was right in resolving the controversy once and for all, having regard to several rounds of litigation in the matter and the attitude of the Appellate Authority (President, Town Panchayat) not to act in accordance with law. It is relevant to state that the dispute started as early as in 1998. The following observations of the learned Single Judge would demonstrate these facts:
"15. The licence issued for construction of the building to the second respondent is at Annexrue 'B'. Learned Counsel for the first respondent has produced a copy of the sanctioned plan, which was issued on 24.1.1998. The plan delineates the boundary of 15 cents of land of the second respondent and also the building to be constructed in the said land. As per the plan, on all the sides, the second respondent has to leave set back. As per the byelaws, a minimum of 1.5 metres should be left as a set back on all sides.
16. According to the petitioner, the second respondent has failed to leave the set back on all the sides of the building. Therefore, he has initiated action for removal of the construction made contrary to the plan. In fact, he had issued notice at the initial stage to stop construction of the building without leaving the set back as early as on 5.10.1998. Instead of stopping the W.A.No.6234/2013 c/w W.A.Nos.6385-6388/2013
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construction, respondent No.2 proceeded to construct the building in brazen defiance of law. After several orders of this Court, a provisional order under Section 187 was passed by the first respondent on 26.3.2003. The said order was confirmed as per Annexure 'G' dated 16/19.8.2003. It is clear from the order that the second respondent has not constructed the building in accordance with the sanctioned plan on the western side. Therefore, he was called upon to bring the building in conformity with the plan, failing which action would be initiated against them. The appellate authority reversed the said order. The matter came before this Court in W.P.No.12527/2009. The case was disposed of on 21.10.2009 with the following observations:
"4. Despite specific directions from the Court in every round of litigation, the Town Municipal Council and the Chief Officer of the first respondent are not complying the directions issued by this Court. In every proceedings that are culminated before this Court, specific directions were issued, but they are not followed by the first respondent. Further, the dispute between the petitioner and the second respondent is pending for more than a decade without attaining any finality. Therefore, a specific direction is hereby issued to the first respondent to pass appropriate orders in accordance with law and within a time frame."
17. The third respondent has not even obeyed this order. He has passed the order at Annexure 'T', which in my opinion is totally opposed to law. This Court by order dated 25.6.2010 directed the Tahsildar, with the assistance of a competent Engineer to visit the building in question and prepare a report as to the existing state of affairs with reference to the sanctioned plan. The said interim order is as under:
W.A.No.6234/2013 c/w W.A.Nos.6385-6388/2013
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"Having regard to the long drawn out proceedings as between the petitioner and respondent No.2, who has successfully thwarted any action being taken against alleged violation of the building plan and inspite of several rounds of writ proceedings before this Court, there is no end in sight nor any finality being achieved in the proceedings, primarily since there is a serious tussle between the parties as to the correct position insofar as the alleged violation of the building plan is concerned. Hence, in order to have an independent source of opinion as to the violation, if any, in the construction of the concerned building, it is found necessary to direct the jurisdictional Tahsildar who shall with the assistance of a competent Engineer visit the building in question and to prepare a report, as to the existing state of affairs with reference to the sanctioned plan and the construction as it exists and to identify the deviations from the building plan, if any, and the extent of such deviation in complete detail. The petitioner shall bear the expenses, if any, in this regard. The Tahsildar shall place the respective parties on notice of such spot inspection and shall carry out such spot inspection in their presence and a detailed report in this regard shall be submitted to this Court within a period of four weeks, if not earlier.
The Counsel for the petitioner shall furnish a complete set of papers to the Government Advocate to enable him to dispatch the same along with a copy of this order to the concerned Tahsildar to take further steps.
Call after five weeks."
18. In obedience of the said order, the Tahsildar has filed his report dated 23.7.2010 along with a sketch. A copy of the said report has been filed along with a memo dated 9.11.2011. The relevant portion of the report is as under:
W.A.No.6234/2013 c/w W.A.Nos.6385-6388/2013
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"The Commercial Complex has been constructed as per the approved plan and leaving a set back of more than 1.5 metres at the northern as well as in the eastern sides of the building in the Sy.No.131/4B. But there is no set back left in the western side of the building and there is an encroachment been done by the respondent Sri V.Nagendra Baliga, which is shown in the attached sketch and the encroached area is shown by red colour mark between the petitioner and the respondent's property. This is for your kind perusal."
(Underlining supplied) As could be seen from the above observations made by the learned Single Judge, no set-back is left on the western side of the building and hence, the construction made is in clear violation of the sanctioned plan. All that the learned Single Judge has done is to bring the construction in question in conformity with the sanctioned plan by directing demolition of the construction only to the extent it is contrary to the sanctioned plan.
8. The contention of the appellants in W.A.Nos.6385- 6388/2013, who are stated to be purchasers of certain shops after construction of the building, is that they were not served in the writ petition and hence, the matter requires to be reconsidered. The learned Single Judge has clearly observed at para 20 of his order that notices had W.A.No.6234/2013 c/w W.A.Nos.6385-6388/2013
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been served on them, but they failed to appear. The contention to the contrary is obviously false. In any event, they claim title through the appellant in W.A.No.6234/2013 who is the owner of the building.
9. As stated above, all that the learned Single Judge has done is to bring the construction in question in conformity with the sanctioned plan by directing demolition of the construction only to the extent it is contrary to the sanctioned plan. The approach made by the learned Single Judge is in conformity with the two judgments of the Supreme Court in Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai [(2013)5 SCC 357] and in Dipak Kumar Mukherjee v. Kolkata Municipal Corpn. [(2013)5 SCC 336] referred to above. We find no ground to interfere with the order of the learned Single Judge. The writ appeals are devoid of merit and are accordingly dismissed with costs quantified at Rupees One Lakh payable to the writ petitioner namely, Bhami Vittal Das Shenoy. The applications filed in W.A.No.6234/2013 namely I.A.1/2014 for interim stay and I.A.2/2014 for production of certain documents also stand disposed of.
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Out of the amount of Rs.15 lakhs deposited with this Court by the appellant in W.A.No.6234/2013 pursuant to the interim order of this Court dated 3.4.2014, Rs.14 lakhs is permitted to be withdrawn by him and the remaining amount of Rs.1 lakh shall be paid to the writ petitioner towards costs as ordered above.
Appeals dismissed.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE KM