Karnataka High Court
Dr Shubhacharitha vs Mysore City Corporation on 11 September, 2020
Author: R Devdas
Bench: R Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE R DEVDAS
WRIT PETITION NO.23 OF 2013 (LB-RES)
BETWEEN
DR. SHUBHACHARITHA
PARTNER, M/S SHUDHA DEVELOPERS,
AGED ABOUT 50 YEARS,
TAPOVANA APARTMENTS,
NO.404, VASISTHA BLOCK,
OPPOSITE RAJARAJESHWARI TEMPLE,
INDUSTRIAL SUBURB, MYSORE SOUTH,
MYSORE-570 008.
...PETITIONER
(BY SRI J PRASHANTH, ADVOCATE)
AND
MYSORE CITY CORPORATION
REP.BY ITS COMMISSIONER,
SAYYAJI ROAD,
MYSORE 570008.
...RESPONDENT
(BY SMT M P GEETHADEVI, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER DATED 20.10.2012 IN M.A. NO.7/2012
ON THE FILE OF THE V ADDITIONAL DISTRICT JUDGE AT
MYSORE VIDE ANNEXURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
R. DEVDAS J., (ORAL):
The petitioner is a developer who entered into a Joint Development Agreement with the owner of the property bearing No.71, 6th Main Road, II Block, Jayalakshmipuram, Mysuru to develop the property into a residential apartment. A building licence and construction plan was got approved from the respondent City Corporation. It is stated in the petition that it was mutually agreed between the petitioner and the owner that there could be some alternations in the construction due to the changed circumstances. Therefore, a modified plan was obtained from the Corporation. However during the course of construction, it is stated that there was interference from the landlord since the landlord had some grouse against the petitioner, he made a complaint before the District Consumer Disputes Redressal Forum, Mysuru by making false allegations against the petitioner. Not being satisfied, the landlord has given a complaint to the respondent 3 Corporation regarding the violation made by the petitioner. A provisional order came to be passed on 04.11.2011 regarding the objectionable portion of the construction. However, it is submitted by the learned counsel for the petitioner that the said provisional order was not communicated to the petitioner. The endorsement on the notice contains the name of one Baby/Babu signed on 26.11.2011. It is submitted that no such persons was authorized to receive notice on behalf of the petitioner. Nevertheless a confirmation order came to be passed under Section 321(3) of the Karnataka Municipal Corporations Act on 21.05.2012.
2. The petitioner challenged the confirmation order before the V Addl. District Judge at Mysore in M.A.No.7/2012 on the ground of violation of principles of justice. Nevertheless the appeal filed by the petitioner was dismissed. Consequently, the petitioner has approached this Court by filing this writ petition.
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3. Learned counsel for the petitioner points out to a resolution dated 30.08.2012 said to have been passed by the Council of the respondent Corporation. It is submitted that as per the said resolution it was decided that until 17.03.2011 when a Government Order was passed amending the percentage of permissible deviation from 25% to 5%, deviation up to 25% was allowed. Therefore, the learned counsel submits that since the construction was prior to 17.03.2011, 25% of the deviation could be regularised.
4. Learned counsel for the respondent Corporation submits that the permissible deviation is governed by the bye-law which have statutory force. The learned counsel further submits that even as per the resolution it was only decided that after seeking an opinion of the legal department, the decision could be taken by the corporation as to deviations prior to 17.03.2011. The learned counsel therefore submits that there is nothing on record to show that the 5 council of the respondent corporation had in fact decided to permit regularisation of 25% of the deviation in violation of the bye-laws with respect to construction that had taken place prior to 17.03.2011.
5. Having heard the learned counsel for the petitioner, respondent-corporation and on perusing the petition papers, this Court finds that the petitioner has in fact admitted that he has put up the construction of the fourth floor in violation of the sanctioned plan. As regards the denial of opportunity of hearing to the petitioner, it could be seen that the learned District Judge during the course of the appeal in M.A.No.7/2012 has given an opportunity to the petitioner to make her submission on the merits of the matter. When the petitioner has admitted that she has put up the fourth floor without there being a sanction, the contention of the petitioner that the confirmation order passed by the respondent 6 Corporation is required to be set aside, cannot be accepted.
6. As rightly submitted by the learned counsel for the respondent Corporation, the bye-laws governing the building regulation have statutory force. The council of the corporation cannot pass a resolution contrary to the regulation which have statutory force. The petitioner has also failed to place on record any regulation or bye-law which permitted regularisation of 25% of the deviation until 17.03.2011. This Court cannot ignore the submission of the learned counsel for the respondent Corporation that the construction of the fourth floor would amount to 100% deviation. Therefore, the contention of the learned counsel for the petitioner that the respondent Corporation should be directed to consider the representation given by the petitioner for regularisation of 25% of the deviation also cannot be accepted.
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7. However, if the petitioner is able to make out a case for regularisation in terms of bye-laws, the respondent Corporation is required to consider such a representation.
8. With these observations, the writ petition is disposed of permitting the petitioner to make one more representation within a period of 30 days from today seeking regularisation in terms of the permissible limits as prescribed in the bye- laws/regulation. The respondent Corporation shall pass necessary orders within a period of two months from the date of receipt of a representation from the petitioner. The respondent corporation may proceed thereafter in accordance with law.
Sd/-
JUDGE KLY/