Karnataka High Court
C.Thayappa S/O Hussainappa vs The Deputy Commissioner on 17 April, 2013
Author: K Sreedhar Rao
Bench: K.Sreedhar Rao
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 17TH DAY OF APRIL 2013
BEFORE
THE HON'BLE MR.JUSTICE K.SREEDHAR RAO
WRIT PETITION NOS.82611-82615 & 82616/2009
(GM-RES)
BETWEEN:
1. C. THAYAPPA
S/O HUSSAINAPPA,
AGE: 60 YEARS, H.NO.1-9-80,
AZAD NAGAR, RAICHUR.
2. UMESH BALIGAR
S/O VEERBHADRAYYA
AGE: MAJOR, H.NO.1-9-75
AZAD NAGAR, RAICHUR.
3. SHANKRAPPA S/O SIDDALINGAPPA
AGE: 58 YEARS, R/O H.NO.1-9-63
AZAD NAGAR, RAICHUR.
4. P. TIPPAIAH S/O HUSSAINAPPA,
AGE: 63 YEARS, R/O AZAD NAGAR,
H.NO.1-9-79, RAICHUR.
5. FRANCIS XAVIER
S/O ANTHONY,
H.NO.1-9-82, AZADNAGAR,
RAICHUR.
6. M. BASWARAJ S/O DEVAPA,
AGE: 62 EYARS, R/O H.NO.1-9-78,
AZAD NAGAR, RAICHUR.
... PETITIONERS
(BY SRI.SHIVAKUMAR KALLOOR, ADVOCATE)
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AND:
1. THE DEPUTY COMMISSIONER,
RAICHUR.
2. THE MUNICIPAL COMMISSIONER,
CITY MUNICIPAL COUNCIL,
RAICHUR.
3. TOWN PLANNING AUTHORITY
BY ITS SECRETARY,
RAICHUR.
4. THE AL-MADINA WELFARE TRUST,
AZAD NAGAR RAICHUR,
REPRESENTED BY ITS PRESIDENT,
RAICHUR.
5. THE AL-MADINA WELFARE TRUST,
AZAD NAGAR, RAICHUR,
REPRESENTED BY ITS SECRETARY,
RAICHUR.
... RESPONDENTS
(SRI. MANAVENDRA REDDY, GOVT. ADV. FOR R1
SRI. CHAND ABDUL RUBB, ADVOCATE FOR R2
SRI. P. VILAS KUMAR, ADVOCATE FOR R3
SRI. ASHOK S. KINAGI, ADVOCATE FOR R4 AND R5)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DIRECT THE RESPONDENTS 1 AND 2 NOT TO GRANT ANY
CONSTRUCTION PERMISSION OF MOSQUE AND
COMMENCEMENT CERTIFICATE FOR THE CONSTRUCTION OF
MOSQUE IN PLOT NO.15 BEARING MUNICPAL NO.1-8-220 (OLD)
1.9.97 (NEW) OF AZAD NAGAR LAYOUT, RAICHUR OF THE
RESPONDENTS 4 AND 5 AND ETC.
THESE PETITIONS COMING ON FOR FINAL HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The respondents 4 and 5 purchased plot No.15 in Azad Nagar, Raichur. The said area is a residential area. The respondents 4 and 5 wanted to put up mosque. The petitioners who are residents of the area have objected, stating that putting up of a mosque will cause inconvenience to the residents. Hence, the petitioners have filed these writ petitions seeking writ of mandamus against respondents 1 and 2, not to grant permission to put up construction of a mosque.
2. The petitioners relied upon the provisions of Bye-law 25 of the K.C.M. (Model) Building Bye-Laws, 1979, which reads as follows:
"25. Requirements of Sites - 25.1. Building Sites - No permission to construct a building on a site shall be granted if:
(i) the site is insanitary or it is dangerous to construct a building on it;
(ii) the site is within 9 (nine) metres of the highest watermark of a tank, unless 4 the owner satisfies the Authority that he will take such measures as will prevent any risk of the domestic drainage of the building passing into the tank. Further, the Authority may require the floor of the lowest storey of such building to be raised above the maximum floor level of the adjoining ground or to such other level as the Authority may specify;
(iii) the owner of the building has not taken all the measures required to safeguard the construction from constantly getting damp;
(iv) the construction of the building thereon is for public worship, which in the opinion of the Authority will wound the religious feelings of any class of persons in vicinity thereof;
(v) the site is not drained properly or is incapable of being well drained;
(vi) the site is a filled up tank or has been filled up with or used for depositing 5 excrementitious matter, caracasses of dead animals, rubbish or filthy and offensive matter, or sewage, unless the Authority has examined the site and granted a certificate to the effect that it is from a sanitary point of view, fit to be built upon;
(vii) the building is to abut on a street, unless the site is of such shape that the face of the building can be made parallel to the line of the street or as nearly parallel to the said line.
Further, in no new building shall the foundation of the external wall along the street be located less than 0.45 metre from the edge of the street or road margin including the drain;
(viii) the use of the said site is for the purpose of establishing a factory, warehouse or work-place which will be a source of annoyance to the health of the inhabitants of the neighbourhood. Save as otherwise provided, no factory workshop, work 6 place or cinema house in which it is proposed to employ steam power or electrical power, shall be constructed until and unless the conditions under the relevant Act are satisfied and permission obtained thereof;
(ix) the plot has not been approved as a building site either by the Municipal Council or by an Improvement Board or by Government;
(x) the building has to be constructed over a municipal drain, sewer line or water mains."
3. The respondents 4 and 5 on the other hand relied upon the zonal regulations to contend that in residential places, places of public worship can be built. The Bye-law 25 however declares that the proposed place of worship should not offend the religious feelings of any clause of persons living in the vicinity. Therefore, in that behalf the enquiry to be held before granting permission for construction of a building for public worship. 7
4. In that view of the matter, the respondents 1 and 2 shall consider the representation of petitioners at Annexures-'E' and 'F' as well as the representation of respondents 4 and 5 and pass appropriate orders, in accordance with law. Accordingly, writ petitions are disposed of.
Sd/-
JUDGE swk