Karnataka High Court
Ramachandra Vittal Pai vs The Town Panchayath And Ors. on 3 December, 2003
Equivalent citations: ILR2004KAR352, 2004(2)KARLJ594
Author: N.K. Patil
Bench: N.K. Patil
ORDER Patil, J.
1. The petitioner, assailing the legality and the validity of the order dated 15.11.2003 in No. RTS:D:SR:31:2003-04 passed by the 2nd respondent vide Annexure-H, has presented this Writ Petition.
2. The grievance of the petitioner is that, he is the absolute owner of S. No. 527/A1/A Hissa 8 (CTS No. 2972) of Honavar village whereas the 3rd respondent is the owner of S.No. 527/A1/A Hissa 7 (CTS No. 2975) of Honavar village. The petitioner filed an application before the 1st respondent for grant of licence to construct a shop premises. The 1st respondent, after considering the application and after holding necessary enquiry as required under the law, granted licence in favour of the petitioner. In pursuance of the licence granted by the 1st respondent, the petitioner has taken up construction. When things stood thus, the 3rd respondent, assailing the licence/permission granted by the 1st respondent, filed a petition before the 2nd respondent. The 2nd respondent entertained the said petition and granted interim order of stay of execution of the order granting licence for construction given by the 1st respondent pending further orders vide Annexure-H dated 15.11.2003. Feeling aggrieved by the said order passed by the 2nd respondent, the petitioner has presented this Writ Petition.
3. The principal submission canvassed by the learned Counsel for the petitioner is that, the impugned order passed by the 2nd respondent is one without jurisdiction. He further submitted that the licence is issued by the 1st respondent after satisfying the requirement of the relevant provisions of the Act. He also submitted that it is not the case of the 3rd respondent that the petitioner has taken up construction contrary to the sanctioned plan nor he has brought to the notice of the 1st respondent about this, but, has straight away approached the 2nd respondent and the 2nd respondent has granted stay of the licence granted in favour of the petitioner. To substantiate his submissions, he relied on Section 187 read with Section 306 of the Act and the law laid down by the Division Bench of this Court in the case of THAMMAIAH v. DIVISIONAL COMMISSIONER, MYSORE1983 (1) Kar.L.J. SN 40 (Page 15) wherein it is held that Section 306(1) contemplates only an order of the town municipal council or resolution of the town municipal council and not orders made by the delegates of the municipal council. Therefore, he submitted that the impugned order passed by the 2nd respondent is one without jurisdiction and hence it is liable to be set aside.
4. The learned Counsel for the 3rd respondent, has filed detailed statement of objections. He submitted that the 2nd respondent being a competent authority as a delegate, has exercised the power under Section 306 of the Act and stayed the permission granted in favour of the petitioner. To substantiate his submission, he placed reliance on Annexure-R.1, the resolution passed by the Town Panchayath, Honavar dated 30.10.2003, which is produced along with the statement of objections and submitted that the request of the petitioner was placed before the council, the council in turn has considered his request and recommended for grant of licence and in pursuance of the decision taken by the Municipal Council, the 1st respondent - Chief Officer has granted the licence. He therefore submitted that no error or illegality as such is committed by the 2nd respondent in passing the impugned order and the said order has been passed in strict compliance of Section 306 of the Act and hence, the Writ Petition is liable to be dismissed.
5.I have heard the learned Counsel for the petitioner, the learned Counsel for the 3rd respondent and the Government Pleader appearing for the 2nd respondent at considerable length of time.
6. After careful perusal of the impugned order, it is manifest on the face of record that the 2nd respondent has committed error and illegality in passing the order at the request of 3rd respondent without giving opportunity to the petitioner. Therefore, the impugned order is vitiated for non-compliance of principles of natural justice. It is worthwhile to extract Section 187 of the Karnataka Municipalities Act, 1964, which reads as follows:
"187. Notice of new building: (1) Before beginning to construct any building, or to alter externally or add to any existing building or to construct or reconstruct any projecting portion of a building in respect of which the municipal council is empowered by Section 181 to enforce a removal or set back, or to construct or reconstruct which the municipal council is empowered by Section 179 to give permission, the person intending so to construct, alter, add or reconstruct shall give to the municipal council notice thereof in writing and shall furnish to it at the same time a plan showing the levels at which the foundation and lowest floor of such building are proposed to be laid, by reference to some level known to the municipal 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 buildings, and the intended situation and construction of the drains, sewers, privies, water-closets and cesspools, if any, to be used in connection, therewith, and the location of the building with reference to any existing or projected streets, and the purpose for which the building will be used.
(2) No construction or reconstruction referred to in Subsection (1) shall be begun unless and until permission for the execution of the work is granted under this Section."
It is clear from the aforesaid provisions that if any party wants to seek permission, he is entitled to make necessary application in the prescribed form. The said request made by the applicant will be placed before the council, the council in turn takes a decision and in pursuance of the said decision, the Chief Officer will issue the licence. Feeling aggrieved by the licence granted in favour of the petitioner by the 1st respondent, the 3rd respondent has filed a petition before the 2nd respondent. The 2nd respondent, exercising his powers as envisaged under Section 306 of the Act, has stayed the permission granted in favour of the petitioner contrary to the relevant provisions of the Act. Section 306 (1) and (2) reads as follows:
"306. Deputy Commissioner's power of suspending execution of orders, etc., of municipal councils: (1) If, in the opinion of the Deputy Commissioner, the execution of any order or resolution of a town municipal council, or the doing of anything which is about to be done or is being done by or on behalf of a town municipal council, is unlawful or is causing or is likely to cause injury or annoyance to the public, or to lead to a breach of the peace, he may, by order in writing under his signature, suspend the execution or prohibit the doing thereof.
(2) When a Deputy Commissioner makes any order under this Section, he shall forthwith forward to Government and to the Commissioner and to the municipal council affected thereby a copy of the order, with a statement of the reasons for making it; and it shall be in the discretion of the Government to rescind the order, or to direct that it shall continue in force with or without modification, permanently or for such period as it thinks fit:
Provided that no order of the Deputy Commissioner passed under this section shall be confirmed, revised or modified by the Government without giving the municipal council, a reasonable opportunity of showing cause against the said order."
A careful perusal of Section 306 (1) and (2) of the Act shows that the 2nd respondent has got the power to suspend the execution of order of a municipal council suo motu or on the request made by any party to that effect by way of filing a petition, if, in the opinion of the concerned authority, the execution of any order or resolution of a town municipal council, or the doing of anything which is about to be done or is being done by or on behalf of a town municipal council, is unlawful or is causing or is likely to cause injury or annoyance to the public, or to lead to a breach of the peace, he may, by order in writing under his signature, suspend the execution or prohibit the doing thereof. Thereafter, he shall forthwith forward to the Government a copy of the order with a statement of the reasons for making it as envisaged under Sub-section (2) of Section 306 of the Act. But in the instant case, the 2nd respondent has stayed the permission granted in favour of the petitioner and he has not referred the matter to the Government. The said order is passed without application of mind and without following the relevant provisions of the Act. Therefore, in my considered view, at any stretch, the impugned order is not sustainable. Further, the Division Bench of this Court, in the case of THAMMAIAH v. DIVISIONAL COMMISSIONER, MYSORE, has held that:
"The intendment of Section 306(1) is to pass an order suspending the execution or prohibiting the doing of something by or on behalf of a town municipal council. If the execution or doing of something which is about to be done or being done is not by or on behalf of a town municipal council, but by or on behalf of some third party, there is no scope for the Deputy Commissioner to exercise the powers under Section 306(1).
Where respondent-4 obtained permission from the Chief Officer of the municipal council under Section 187 of the Act for putting up a construction and respondent-4 had proceeded to put up the construction, it cannot be said that there was something being executed, in order to attract Section 306(1); and the Deputy Commissioner cannot invoke Section 306(1) to prohibit any portion of the construction. rel on.
When permission is granted for putting up a construction, nothing further is required to be done. The process of granting is complete and no further steps are required to be taken.
The order of the Chief Officer under Section 187 read with Section 330(a) of the Act cannot be deemed to be an order of the municipal council. Though the order granting permission by the Chief Officer has the same effect as the one made by the municipal council itself, Section 306(1) of the Act is not applicable to the order made by the delegate. What Section 306(1) contemplates is only an order of the town municipal council or resolution of the town municipal council and not orders made by the delegates of the municipal council."
It is significant to note that the Division Bench has considered the power envisaged under Section 306 of the Karnataka Municipalities Act, 1964 and has laid down the law following the well settled principles of law laid down by the Apex Court in . In view of the law laid down by the Apex Court and this Court in the cases cited supra, the impugned order cannot be sustained and it is liable to be set aside.
7. Having regard to the facts and circumstances of the case as stated above and taking into consideration the factual and legal aspect of the matter as enumerated above, I do not find any justification to sustain the impugned order passed by the 2nd respondent.
8. For the foregoing reasons, Writ Petition is allowed. The impugned order passed by the 2nd respondent dated 15.11.2003 in No. RTS:D:SR:31:2003-04 is hereby set aside. However, liberty is reserved to the 3rd respondent to redress his grievance before the appropriate authority/forum, if he is so advised.
9. Writ Petition stands disposed of.
10. The learned AGA is permitted to file his memo of appearance within two weeks from today.