Karnataka High Court
Smt. Sudha vs State Of Karnataka on 20 December, 2018
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
WRIT PETITION NOS.56747-748/2018 (LB RES)
BETWEEN :
1. Smt. Sudha
W/o late Jayaram
Aged about 60 years,
Prabhath Hotel
Opp. Vokkaligara hostel
B M Road
Hassan-573201
2. Sri R Rangaswamy
S/o Sri R V Muniraj
Aged about 65 years
(senior citizen benefit not claimed)
Prabhat hotel
Opp Vokkaligara hostel
B M Road,
Hassan-573201 ... Petitioners
(By Sri Prakash G R, Advocate)
AND:
1. State of Karnataka
Rep by its Principal Secretary
Urban Development Department,
Multi storied building
Bangalore-560 001
2. The Deputy Commissioner
Hassan District
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Hassan-573201
3. The Director of Municipal
Administration in Karnataka
Visweswaraiah tower
Dr Ambedkar Veedhi
Bangalore-560 001
4. The City Municipal Council
Hassan city
Hassan-573201
Rep by its Commissioner
5. The Hassan Urban Development Authority
Hassan-573202
Rep by its Commissioner
6. The Principal Secretary
Public Works Department
Government of Karnataka
Vikasa Soudha
Bangalore-560 001 ... Respondents
(By Smt.Prathima Honnapura, AGA for R-1 to 3 & 6
Sri A Ravishankar, Advocate for R-4)
These writ petitions filed under Articles 226 and 227
of the Constitution of India praying to set aside the
provisional order [Annexure-F1 & F2] issued by the Municipal
Commissioner, City Municipal Council, Hassan [R-4].
These writ petitions coming on for preliminary hearing
this day, the Court made the following:
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ORDER
Learned AGA accepts notice for respondents No.1, 2, 3 and 6. Sri A.Ravishankar, learned counsel who has entered caveat accepts notice for respondents No.4 and 5.
2. These petitions are disposed of taking note of the directions in W.P.No.53139/2018 (28.11.2018).
3. The petitioners have assailed the orders / notices dated 3.12.2018 passed by the fourth respondent as per Annexures-F1 and F2 whereby the fourth respondent after having issued notice to the petitioners has observed that there were certain violations and has passed an order for removal of the constructed portion of the building adjacent to B.M.Road, Hassan and that construction which falls within the six meters set back area was required to be removed and that essential amenities including sewage, electricity and water connections would be disconnected. The said order has been passed in terms of Section 187(9)(a) of the Karnataka Municipalities Act, 1964 (for short "the Act").
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4. The petitioners contend that the said orders are in the nature of a final orders and if the same is executed, the petitioners will be put to irreparable loss and also the same is in violation of law. The petitioners also contend that no power is conferred to disconnect essential amenities.
5. Counsel for the respondent Nos.4 and 5, Sri.A.Ravishankar states that the orders are only provisional orders under 187(9)(a) of the Act and the Writ Petitions are premature as the final orders are yet to be passed and in fact the orders/notices at Annexures - F1 and F2 are passed and notice has been given to enable the owner of the building to show cause as to why the said order could not be confirmed in terms of Section 187(9)(c) of the Act and that the procedure prescribed under clauses
(c), (d) and (e) would be adhered to. Counsel for the respondents fairly submits that the orders/notices at Annexures - F1 and F2 is not a final order and is subject to the procedure as detailed above which would be strictly adhered to.
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6. In light of the submissions made by the respondents and having heard the counsel for the petitioners and on perusal of Annexures - F1 and F2, it is clear that the orders at Annexures - F1 and F2 are only provisional orders as per Section 187(9)(a) of the Act. The petitioners have been afforded an opportunity to show cause as to why the said provisional order may not be confirmed and in light of the submission of the counsel for the respondents, Annexures - F1 and F2 would be followed up with the procedural requirement of clause (b), (c), (d) and (e) strictly in accordance with the procedure prescribed. Hence, the present writ petitions are premature.
7. The orders/notices at Annexures - F1 and F2 is to be construed to be an order under Section 187(9)(a) of the Act. The petitioners are at liberty to submit their reply as to why the said orders /notices at Annexures - F1 and F2 need not be confirmed. The respondent - authorities to consider the reply of the petitioners in accordance with the procedure prescribed under Section 187 of the Act. No -6- action as such can be initiated to demolish pursuant to Annexures - F1 and F2 as the same is only a provisional order and yet to be confirmed.
8. All contentions of the petitioners including that of the jurisdiction are kept open. The petitioners are permitted to file their reply by 27.01.2019 and are directed to be present on the said date at 11.00 a.m. before respondent No.4. The respondent-authority is at liberty to carry out inspection in the presence of the petitioners by fixing a date on 27.01.2019 and the said inspection could be carried out in the presence of the jurisdictional Town Planning Member attached to the office of the Urban Development Authority.
In terms of the above, petitions stand disposed of.
Sd/-
JUDGE akc