Karnataka High Court
Manipal Co-Operative House Building ... vs The Commissioner Udupi City Municipal ... on 10 September, 2009
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE my DATED THIS THE 10™ DAY OF SEPTEMBER, 2009 BEFORE ~~ THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GO WDA WRIT PETITION NO. S077 OF 2009 (LB- RES) BETWEEN: Manipal Co-operative House Building Society Ltd., . No.812, Ananthnagar, ae Manipal, Udupi Taluk and District, ao Represented by its: Secretary, a Sri.K.Sudhak ar Shetty, | Aged 53 years, es a Manipal. a ...PETITIONER (By Sri. A. Anand Shetty Adv. ) AND: 4. Fhe Commissioner, _ Udupi City Municipal Council, OO KM.Marg, Udupi. a 2. Dr. H.Ganesh Pai, ~~. S/o. late H.D.S. Pai, _ Aged about 55 years, - Residing at No.82, - Ananthnagar, Manipal, 'Udupi Taluk & District. . ~RESPONDENTS (By Sri. Ashok Haranahalli, Sr.counsel and P.N. Manmohan for R2 and Sri T.1.Abdulla, for R1) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO > - QUASH THE ORDER PASSED BY THE Ri DATED. -10.2.2009 | VIDE ANX-G AND RESTORE THE ORDER. OF THE # Ri DATE. , 5.2.2008 VIDE ANX-D. ON This petition coming ori for hearing th ois dy, the Court made the following: ; rs oRD ne | The petitioner is a Co- operative Society, registered under the Karnataka Co- operative Societies Act, 1959 (the Act' for short). It has. formed. a. fayout of sites, in an extent of 42. ar actes in 1 Sy. Nos. 379/1, 318 and 51 of Shivalti Village in Manipal. An 'extent of 33 cents of the property in 'the said layout, was sold in favour of Sri H. _Damodhar Pai, fatner.of the 2°¢ respondent, under a sate deed dated 3.9.1964, Said allottee constructed a residential house. On 2.5.1972, an agreement came into a being between said Sri H. Damodhar Pai and the -. petitioner. Sti H.Damodhar Pai, passed away on -22.6.1999 and the 2™ respondent has succeeded to the said property. " - " 2. The 2" respondent applied for permission to demolish the house and to put up a new building. at respondent issued an endorsement dated 22. 5, 2007, - granting permission to demolish the existing. building, 'The' 2°? respondent applied for issue of building: licence on 6.6.2007, The building licence 'was _ sanctined by the 1* respondent, whereby, permission to- construct, basement, ground and 3 upper floors. building, was allowed. After the 2nd respondent comrnenced the 'construction, petitioner approached the 1 " respondent for cancellation of building licence 'sued to the ca nd "respondent, on the ground that, the same has | been obtained by acts of misrepresentation. The 1" respondent passed an order dated 5.2.2008, by ; : "which, the Sai Md building licence was cancelled. Aggrieved thereby, the opr respondent filed W.P.No.2696/2008, whicis, after hearing, was allowed by an order dated : ~~ 19.1.2009, _ Order passed by the 1° respondent was set ~ aside arid the matter was remitted for reconsideration, .
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3. After the remand, the parties have appeared before the 1* respondent and have placed their evidence. | After hearing both sides, the 1° respondent has held that, ~ building licence has been issued. after considering the _ relevant facts and there is no misrepresentation at the | time of grant of building licence. 'He has. further neid- that, the dispute regarding enforcement of bye: laws. of Co- operative Society, has to be. dec ided by a competent authority under tne provision: S of the > relevant law and the same cannot be decided under the provisions of Karnataka Municipalities Act ( KAM. Act' for short) and Karnataka Town and Country Planning Act. - Accordingly, on 10.2.2009, the appeal of the petitioner » was rejected as per the order at . Annexure-G. " 7 4. The petitioner has preferred this writ petition, to quash. the. order passed by the 1* respondent dated " 10.2.2009,, as at Annexure-G and to restore the earlier order dated 5.2.2008, as at Annexure-D. \ oo, 5, 2nd respondent has filed statement of objections to the writ petition. 1% respondent has not. fled. any. statement of objections. The petitioner 'has filed a rejoinder statement.
6. I have heard Sri A.Anianda Shetty learned counsel O appearing for the petitioner, Sri: "Ashok Hai ranalli, 'learned Sr.counsel appearing fot the ne. 'respondent and Sri T...Abdulla, learned counsel "appearing for the i* respondent. I have als SO Perused the writ papers.
7. Sti A. Ananda Shetty, 'Yehunent contended that, the 1st respondent has. failed to consider the fact of, suppression of materia facts by the 2"¢ respondent, while . obtaining the licence. it was contended that, since, the petitioner - society had passed various resolutions, prohiiting the 'putting UD Of multi storeyed buildings or commercial buildings, within the layout limits of the society
- "and since 'the bye-laws of the society also prohibit the construction of multi storeyed buildings, the 2"
respondent, being the Signatory to various resolutions L Passed by the society since from 2005, ought to have brought the same to the notice of the competent. authority, 7 while obtaining the building licence. Further, the licens ing _ authority has failed to verify the conditions i in the 'sale deed in favour of the father of 2nd respondent, which prohibits construction of multi storeyed uiiding in the petitioner's layout. In view oF ee coriitions Contained in the sale deed, bye- laws and resolutions of the society, the licensing authority. ought not. 'to. have issued building licence for construction of a multi storeyed building by the 2nd respondent, speciatly in view of the fact that, no sewerage facility is made available within the Municipal area includiixg the layout wherein the petitioner has formed _ the society. The layout. of the society is situated in a place
- where there is laterate Stone and the leech pits are dug up % and. 'each single tenement iS required to be drained up periodically. Keeping the said draw backs, the society, os the Jiterest of all its members, has passed the resolutions, imposing self-restriction, to permit only one single tenement building in a site, prohibiting putting up multi \ "
Storeyed building or commercial building, which: the General Body of the society has approved. and the.
or.
members, including the 2™ respondent are bound by he. > same. Learned counsel contended that, the 1° "respondent has failed to act in accordance: with faw and the impugned _ order is illegal.
8. Per contra, Sri Ashok Heron, learned Sr.counsel appearing for the 24 respondent contended that, writ petition is not maintainable and. is lable to be rejected in limine, It was pointed out that, the petitioner by placing reliance | on "the: bye- laws of a Co-operative Society, is trying to question. the bullaing licence, which has been validly. issued by the. competent authority under the : : 'provisions of the K, M. Act. He contended that, the nature a dispute of tir e- . petitioner, if at all, can be a Subject matter of dispute under S.70 of the Act and cannot be a "subject ~ matter of consideration by the authorities : functioning under the K.M.Act, He contended that, the ws validity or otherwise of a building licence issued under the ( a provisions of K.M.Act, will have to be decided only' with reference to the provisions under the said Act, building .
bye-laws and the provisions of the Karnataka Town and 7 Country Planning Act and it is not permissible to "place:
reliance on the bye-law of the Co- -operative society and an 1 that basis to hold that, the building licence could not have been issued or should he cancetiod. | He further contended that, the bye-laws of the petitioner society are in the nature of an agreement between 'the member and the society and the same cannot. prevail over the provisions of statutes.. Reliance WAS" placed « on. the decision in the case of BABAJI KONDAST GARAD AND OTHERS VS. NASIK MERCHANTS. CO- "OPERATIVE BANK LTD., NASIK AND _ OTHERS (ATR 1984 SC 192), wherein it has been held that, as there 'is any conflict between a statute and the subordinate legislation, the statute prevails over "subordinate legislation and the bye-law if not in conformity = with the statute, in order to give effect to the statutory _ provision, the Rule or bye-law has to be ignored. Learned Sr. Counsel contended that, the requirement to be followed at the time of construction of the building, is clearly stipulated by the provisions of the K.M, Act and the building bye-laws thereunder and not, the bye- aw made me under the Karnataka Co- operative Societies Act tt was:
contended that, the licensing autherity has rightly issued the building licence, which conforms with the building bye- laws and hence the 1° respondent has rightly held that the licence has been validly. issued: after examining the matter and that, there was, no nisrepresentation of any nature. It was contented that, the power under § S.188 of the K.M. Act, can only.be exercised by the authority, if a sanction had been accorded, in : consequence of any material misrepresentation or fraudulent statement contained in the | Notice or the information given under the provisions of . S 187. Sinice there was no misrepresentation or fraudulent statement made by before the licensing authority, by the an respondent, while applying for building licence under 3,187, the power under S.188 cannot be exercised and "even otherwise, the 1* respondent authority having examined the matter in accordance with law and having a 10 found that, there is no mis representation or fraudulent statement, has correctly passed the order at Annexus re G, h which does not call for interference.
9. Sri. T.Abdulla, Learned counsel for the. ce respondent, by taking me trough the records sand. 'the 2 order at Annexure-G, contended. that, the 4 respondent has examined in accordance with law the records received under S.187 and the findings recorded in' the impugned order, being in "consonance with the: record and the relevant stator p provisions, 'no interference is called for.
10. Keeping in vie "the rival contentions, the short point for cotiside ration ts, whether the order passed by the 1 respondent a: as at "Annexure-G, is arbitrary and illegal?
"tt indisputably, petitioner sold the property in favour of Sri 4. Damodar Pai, i.e, the father of the 2"
respondent: Annexure-R1 is the copy of the sale deed.
-- Clause (7) therein provided for construction of house on
7. "the land before the end of the year 1964 and the building a "
11Shall be constructed according to the Rules taid down by the society in that behalf. Indisputably, 2™ respondent's, father had constructed a building and was in occupation of _ it. Permission for demolition of the buitding was s obtained :
by the 2" respondent from the rs respondent on - 22.5.2007, Petitioner society has no authority to either sanction the plan or issue the buicing license. All the allottees of sites in the layout of petitioner, who have constructed the buildings, have obtained building license only from the 8. : respondent . ang have made the construction, 2" re espandent applied to the Town Planning Authority, Udupi, for approval of the plan for construction of the building. the pian waS approved by the said . authority on 1.6.2007,. Thereupon, the 1° respondent . 'issued the building licence to the 24 respondent on 6.6.2007, | 'stipulating the terms and conditions in accordance with which, the building should be constructed.
; 7 tt is not the, case of the petitioner that the building is being constructed contrary to the sanction plan and in violation of the terms of licence. \
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12. The petitioner filed an appeal before. the Deputy Commissioner, Udupi, against the licence issued to the 27° respondent, for construction of the building, "The e appeal. However, it was observed that, 'the petitioner an' approach the 1° respondent under S. 188 of the K. M. Act. The petitioner thereafter approached 'the ce respondent contending that, there is. wilifit "suppression of material facts by the a respondent : in. the matter of obtaining of the building g ficence and. hence, the same should be cancelled... The yt. respondent passed an order dated 5.2.2008, whereby, the. ticence issued to the 2% respondent was "samlied The 2™ respondent filed . _W.P.2696/2008, "which after hearing was allowed on | -19.1.2009 on the ground that, there was violation of princip pies of natural justice and that, the 1° respondent did not apply its mind independently to the materials, but
- ~ simpiy followed the opinion of its legal counsel to cancel the licence. This Court, after quashing the order of
- cancellation dated 5.2.2008, directed the 1* respondent to ~ o 13 consider the matter by extending reasonable opportunity of hearing to the Parties, who were directed. to. appear before the 1° respondent on 3.2.2009 and the 1 respondent was directed to near and 'pa SS orders immediately thereafter, It is in pursuance thereof, the we respondent took up the matter for re- conside letation. Both the parties have appeared before the 1 respondent, placed their evidence and after granting reasonable opportunity of hearing, the i® * respondent has passed the order dated 20.2.2009, as at Annexu re-G, 13, It is not the ae of the petitioner that, there was no reasonabie opportunity of hearing extended to it, by the 1° respondent in the matter of consideration of its : : "appeal or: that. any materials placed on record has not been considered, w whiie. passing the order at Annexure-G. What is sought fo be contended is that, the 2" respondent who owas signatory to the various resolutions passed by the
- -Manageinent Committee of the society and its General oes Body, wherein there was restriction placed in the matter of construction of multi storeyed building, was in fact, not brought to the notice of the 1* respondent and 'that the.
licence dated 6.6.2007 was obtained. The s "respondent _ after examining the record and while passing 'the:
impugned order has held that, the Licensing Au thority has - taken into consideration the title deeds and all 'other Materials produced by. the. applicant (2nd fespondent herein) while seeking the licence and. on after examination and consideration only, the, 'Hcenice dated 6.6.2007 was issued, It has been observed that, what was sought to be Primarily contended JS, the violation of resolutions of the society. Having observed the Said of grievance of the petitioner, it has been rightly held by the 1* respondent _ that, the dispute, if any, between the petitioner and its | "member Le. the 2 respondent, cannot be the subject maiter. of "ensideration before the forums/authorities under the K. M, Act and can only be the subject matter of . consideration, if any, before the forums/authorities : . constituted under the Co- "Operative Societies Act, .
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14. S.187 of the K.M.Act contemplates that, before beginning to construct any building, the municipal souncit iS empowered by $.179, to give Permission. The person _--
intending so to construct, shall give notice to the. municipal council in writing and shall furnish to it at the same time, a :
Dilan Showing the levels at which the foundation a and lowest floor of such building ara proposed te be laid, by reference to some level known to the miunicipal "council, and all information required by. the bye- laws or demanded by the municipal COUNCIL regarding the Limits, dimension, design, ventilation and materials of the. proposed building, and the intended situation a and construction of the drains, seweres, Privies, water-closets_ and cesspools, if any, to be used in connection 'therewith, and the location of the building with | 'reference, te any "existing Or projected Streets, and the purpose for which the building will be used. Indisputably, te planning authority iS in existence. The said planning
- authority having been approached for Sanction of the plan : . for tie intended Duilding, after examination of the request, has Sanctioned and approved the plan on 1.6.2007. It is _--17
Sanction was accorded in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information furnished under Section 187, | can cancel the licence. Perusal of: order at Anne nexure-G. shows that 1° respondent has evamined the matter in terms of the provisions made un der S. 188 of the Act and having been satisfied that, there, was: no "misrepresentation or fraudulent statement made by the 2 respondent while applying and obtaining licence on 1 6.6 6. 2007, has Passed the order dismissing the appeal of the petitioner, The order at Annexure- G "shows, that, 'TS. net mechanical exercise undertaken by. the: st " respondent, but the same has been passed after detailed "examination of the relevant materials... The 2 2 nd respondent had submitted to the 1° . 7 respondent, when he made application under S.187 for issue of building licence, all the stipulated documents. It is on consideration of such documents, the licence has been issued. Even otherwise, while passing the order at "Annexure- -G, the 1* respondent has re-examined the > inaterials and has found that, the licence has been L obtained by 24 respondent after submitting a Proper notice, as contemplated under S.187 and there" is. m9 material misrepresentation or any fraudulent. statement. wo The said findings and conclusion In the order at Annexure -
- G, is after due reference to the materials avaiiabia on .
record. No relevant or material document or 'circum: stance has been left out from consideration. There is.no 'material irregularity or perversity: c en the pert of ci ~ respondent, in arriving at the said finding.
16. The contention OF 'Si Ananda Shetty, learned counsel for the petiioner iS that, 'the resolutions of the society i irt the matter of. ccenstruction of buildings in the layout have hot been nade Known to the 1% respondent and ha ve als sO not been considered by the 1* respondent.
"There 'is no merit in the contention. The said aspect has also been answered by the 1* respondent, while passing a the impugned order. The contractual obligation between
- the Co-operative Society and its members, cannot be a
- subject matter of consideration by the authority 19 constituted under the K.M.Act. Hence, the 1** respondent has rightly observed that the petitioner is at Hberty. to approach the authority under the Co- operative Societies Act, if there is any dispute between the society and its. member. Section 70 of K-C.S.Act,, Provides for such resolution. Hence the 1%" respondent was: justified in making the said observation.
17. Another contention canvassed. by; the learned counsel is that, the title deed of the pnd respondent has not been examined by the 8 respondent either at the time of issuing the licence or at the 'time of passing the order at Annexure- G. do not. find merit in the contention, because the impugned "order at Annexure-G refers to the examination | of title: deeds by the authority. Even "otherwise, Annexure: Ri being the sale deed, it does not show 'that there Was any restriction in the matter of i . construction of the building made after 1964 by the : allottee/member Since the plan had been validly ™, _ sanctioned by the Town Planning Authority on 1.6. 2007 N aon under Section 70 of the Karnataka Co- -Operative S Act 1959.
ocieties In the said view of the matter and. 1 subject fo. the said observations, writ petition is devoid < of merit and shall stand dismissed accordingly. ~~ Misc.W. 5768/2009 does not survive for consideration, since the Main matter itself is disposed of.
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