Karnataka High Court
Smt A S Asha vs Commissioner on 26 June, 2012
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION NOS.31903-31904 OF 2011 [LB-RES]
BETWEEN
1. SMT.A.S.ASHA
W/O SHANTHA RAM
AGED ABOUT 49 YEARS
BY HER P.A. HOLDER
A.N.SHANTHARAM
2. A.N.SHANTHARAM
S/O LATE A.V.NANJUNDA SETTY
AGED ABOUT 57 YEARS
BOTH ARE R/AT NO.472/F1
CHAVADI STREET, 2ND CROSS
KHILLE MOHALLA
MYSORE - 570 024. ...PETITIONERS
(BY:SMT.SHALINI PATIL, ADVOCATE)
AND:
1. COMMISSIONER
MYSORE CITY CORPORATION
SAYYAJIRAO ROAD, MYSORE.
2. JOINT DIRECTOR
TOWN PLANNING
MYSORE CITY CORPORATION
CORPORATION BUILDING
SAYYAJIRAO ROAD, MYSORE.
3. CHIEF SECRETARY
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA
BENGALURU. ... RESPONDENTS
2
(BY:MS.M.P.GEETHADEVI, ADVOCATE FOR R1 & R2;
SRI N.B.VISHWANATH, AGA FOR R3)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO CALL FOR THE RECORDS PERTAINING TO THE ORDER
DATED 30.1.2010 PASSED BY THE COMMISSIONER,
MYSORE MAHANAGARA PALIKE AS PER ANNEXURE-K
AND FILE PERTAINING TO M.A.NO.121/2010 ON THE FILE
OF III ADDL. DISTRICT AND SESSIONS JUDGE, MYSORE
AS PER JUDGMENT DATED 5.8.2011 AS PER ANNEXURE-L
AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Though these petitions are listed for hearing on I.A., they are taken up for final disposal with the consent of both the learned advocates.
2. The petitioners have called into question the first respondent's order, dated 30.1.2010 (Annexure-K) directing the petitioners to remove the unauthorised structures, etc. and the judgment, dated 5.8.2011 (Annexure-L) passed by the Court of the III Addl. District and Sessions Judge, Mysore, in M.A.No.121/2010 confirming the first respondent Commissioner's order. Further, the petitioners have also sought a writ of mandamus to consider their 3 representations, dated 20.8.2008 (Annexure-M2) and 15.1.2009 (Annexure-G) for the regularisation of the structures, which are not in accordance with the sanctioned plan.
3. Smt.Shalini Patil, the learned counsel for the petitioners submits that the petitioners have purchased the building from their neighbour Dr.Ravishankar, at whose instance the impugned order is passed. She submits that the petitioners' representations for the regularistion of the unauthorised structures have remained unconsidered. She submits that, if there is any deviation from the plan, the Commissioner has the power to regularise it by imposing the prescribed penalty. She submits that the respondents cannot foreclose the options of the petitioners by precipitating the crisis. She also submits that once the 'Akrama Sakrama' scheme is put in place, there would not be any difficulty in getting the unauthorised structures regularised.
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4. Ms.M.P.Geethadevi, the learned counsel appearing for the respondent Nos.1 and 2 submits that the plan sanctioned is only for the ground and the first floors. The basement construction is not provided for. The cellar is created without there being a sanctioned plan. She also complains of deviation from the sanctioned plan. She submits that this is the third round of litigation.
5. The learned counsel brings to my notice the conditional interim order granted by this Court in Writ Petition No.11151/2009 (Annexure-R1 to the statement of objections). The same reads as follows:-
"Interim stay of Annexure - A till the next date of hearing. The petitioner shall file an affidavit undertaking to fill up and close the cellar portion of the building which is unauthorised, within the next date of hearing."
She submits that the petitioners did not fill up and close the cellar portion.
6. My perusal of the Commissioner's order, dated 30.1.2010 reveals that the construction in some 5 portions is not in accordance with the sanctioned plan and the cellar floor is created without there being any sanction therefor. The petitioners filed M.A. No. 121/2010, but without any rate of success.
7. My perusal of the judgment passed by the learned District Judge in the said appeal reveals that the learned District Judge has noticed the construction of the cellar floor without any licence or plan. He has also noticed that certain portions have been constructed making deviations from the sanctioned plan.
8. Despite affording several opportunities to the petitioners to bring the construction in conformity with the sanctioned plan, the petitioners have not shown the compliance. I therefore refuse to quash the impugned orders at Annexures-'K' and 'L.'
9. Similarly, the grievance of the petitioners that their representations at Annexures-G and M2 have remained unconsidered is also devoid of merit, as they have been substantially considered by the respondents by the order, dated 16.2.2009.
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10. Nonetheless, I am of the considered view that the petitioners have to be given one more opportunity to bring the existing structure in conformity with the sanctioned plan. The petitioners are directed to fill the cellar floor and report the compliance to the respondents within two weeks from today. On the petitioners reporting the compliance and on the respondents satisfying themselves of the same, the respondents shall examine whether the surviving deviations, if any, are within the condonable limits. If they fall within the condonable limits, the respondent No.2 shall impose the permissible fine/penalty and regularise them. If the petitioners default in reporting the compliance to the satisfaction of the respondent No.2, it shall always be open to the respondent No.1 and/or respondent No.2 to give effect to the impugned order, dated 30.1.2010 (Annexure-K).
11. These petitions are accordingly disposed of. No order as to costs.
Sd/-
JUDGE VGR