Karnataka High Court
Baburao vs The State Of Karnataka And Ors on 5 April, 2022
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION No.202236/2021 (LB-RES)
Between:
Baburao S/o Ganpathrao Kotmir,
Aged about 74 years, Occ: Pensioner,
R/o CMC No.8-6-157/1, Plot No.21/1,
Situated at Gullar Haveli,
Near Old Polytechnic College,
Bidar-585 401.
... Petitioner
(By Sri Ravi B. Patil, Advocate)
And:
1. The State of Karnataka
Department of Urban Development,
Represented by its Principal Secretary,
Vikas Soudha,
Bengaluru-560 001.
2. The Director of Municipal Administration,
Ambedkar Road, 9th & 10th Floor,
Vishveshwariah Tower,
Sampangi Rama Nagar,
Bengaluru-560 001.
3. The Commissioner,
Bidar Urban Development Authority,
Bidar-585 401.
2
4. The Commissioner,
City Municipal Council,
Bidar-585 401.
5. Vaijinathrao
S/o Nagindra Rao Ambure
Age: Major,
R/o Plot No.21 NGO's Colony,
Gulhar Haveli, Bidar-585 401.
... Respondents
(By Sri Biradar Viranagouda, AGA for R1 & R2;
Sri P.S.Malipatil, Advocate for R3;
Sri Gourish S. Khashampur, Advocate for R4;
Sri K.M.Ghate, Advocate for R5)
This Writ Petition is filed under Articles 226 and 227
of Constitution of India praying to quash the impugned
Order as at Annexure-N bearing No.BMC/AK/22/2014-
15/668 dated 23.11.2021 issued by the 4th respondent
authority directing the petitioner to remove the alleged
illegal structure constructed on the schedule property as
illegal, arbitrary and without jurisdiction and direct
respondent Nos.3 and 4 not to demolish the house
property bearing CMC No.8-6-157/1 situated in Plot
No.21/1 in NGOs layout Gulhar Haveli Bidar, without
holding joint enquiry by respondent Nos.3 & 4 in terms of
the modified layout map.
This petition coming on for Preliminary Hearing in 'B'
Group, this day, the Court made the following:-
3
ORDER
Petitioner aggrieved by the order dated 23.11.2021 passed by respondent No.4 vide Annexure-N has filed this writ petition. The petitioner has also sought for mandamus directing respondent Nos.3 and 4 not to demolish the petitioner's house without holding joint enquiry in terms of modified layout map.
2. Brief facts giving rise to filing of this petition are that NGO Housing Society has formed a layout of residential sites. Wife of the petitioner was allotted with site No.21/1 in the layout of residential sites. Name of the wife of the petitioner was duly mutated in the municipal records by assigning CMC No.8-6-157/1. Respondent No.3 initiated proceedings based on the application of NGO's Housing Society for issuing Sub-Division of Plot No.21/1 in the layout. 4 Respondent No.3 issued direction to respondent No.4 to cancel the mutation in favour of Vaijnathrao beyond the extent which is allotted to his vendor. Respondent No.4 cancelled the construction permission issued in favour of Vaijnathrao based on the resolution. Respondent No.5 lodged complaint with respondent No.4 which prompted the petitioner to file suit in O.S.No.250/2017 before the Principal Civil Judge and JMFC-II, Bidar, for the relief of perpetual injunction against respondent No.4. In the said suit, petitioner filed an application seeking an order of temporary injunction. The said application was rejected by the trial Court. Against the said order, petitioner preferred M.A.No.3/2020. The appellate Court dismissed the appeal filed by the petitioner. Thereafter, respondent No.4 issued notice dated 22.06.2020 under Section 187 of the Karnataka Municipalities Act, 1964 (for short 'the Act') directing 5 the petitioner to demolish construction put up by him. The petitioner aggrieved by the notice dated 22.06.2020 preferred petition in W.P.No.226045/ 2020. This Court by order dated 13.09.2021 disposed of the writ petition directing the petitioner to file objection to the said notice and directed respondent No.4 to pass appropriate order after considering the objection filed by the petitioner. In pursuance of the order passed by this Court in the aforesaid writ petition, petitioner filed objection/reply to the notice vide Annexure-K. Respondent No.4 without considering the objection filed by the petitioner has passed the impugned order vide Annexure-N. Hence, this writ petition.
3. Heard learned counsel appearing for the petitioner and Sri Biradar Viranagouda, learned Additional Government Advocate for respondent Nos.1 and 2; Sri P.S.Malipatil, Advocate for respondent 6 No.3, Sri Gourish S. Khashampur, learned counsel for respondent No.4 and Sri K.M.Ghate, learned counsel appearing for respondent No.5.
4. Learned counsel for the petitioner submits that as per the order passed by this Court petitioner filed objection to the show cause notice. However, respondent No.4 without considering the objection filed by the petitioner has passed the impugned order. He submits that the impugned order passed by respondent No.4 is contrary to the observations made by this Court in the aforesaid writ petition. On these grounds, he prays to allow the writ petition and prays to remand the matter to respondent No.4 to re- consider the objection filed by the petitioner and pass appropriate orders.
5. Learned counsel for respondent No.4 fairly submits that respondent No.4 will consider the 7 objections and pass appropriate orders in accordance with law.
6. I have perused the records and considered the submissions made by the learned counsel appearing for the parties.
7. There is no dispute that the petitioner constructed building and respondent No.4 has issued notice under Section 187 of the Act. The said notice was challenged by the petitioner in W.P.No.226045/2020. This Court disposed of the writ petition vide order dated 13.09.2021 wherein at paragraphs-7 and 8 it is observed as under:
"7. The impugned notice is issued under Section 187 of the Act of 1964. The ultimate consequence of an action under Section 187 of the Act of 1964 would be that the construction put up by the petitioner would be demolished. Hence, 8 Section 187 is designed in such a manner that the affected person is heard before passing any order of demolition. In the present case, the petitioner is bound to answer the notice issued by the respondent No.4 and the respondent No.4 is bound to pass appropriate orders after considering the objections filed by the petitioner. Under the circumstances, the petitioner should not have rushed to this Court by filing the present writ petition.
8. Nonetheless, since the petitioner apprehended that the respondent No.4 would take coercive action, it is appropriate to dispose of this writ petition reserving liberty to the petitioner to file his objections to the impugned notice within a period of two weeks from today. The respondent No.4 shall pass appropriate orders within two weeks thereafter and communicate the same to the petitioner. Until the aforesaid exercise is completed, the construction put 9 up by the petitioner shall not be demolished."
8. In pursuance to the said order, petitioner filed objection to the said show cause notice as per Annexure-K. However, respondent No.4 without considering the objection filed by the petitioner has passed the impugned order. Respondent No.4 has not applied his mind while passing the impugned order. Therefore, the said order is liable to be set aside only on the aforesaid ground.
9. In view of the above discussion, I proceed to pass the following:
ORDER i. The writ petition is allowed.
ii. The impugned order dated 23.11.2021
passed by respondent No.4 at
Annexure-N is set aside. Matter is
remanded to respondent No.4.
Respondent No.4 is directed to consider 10 the objections filed by the petitioner as per Annexure-K and pass appropriate orders.
iii. All the contentions of the parties are kept open.
iv. Respondent No.4 is directed not to precipitate the matter until passing of an order.
v. Parties are directed to appear before respondent No.4 on 10.05.2022.
vi. Respondent No.4 is directed to dispose of the matter within fifteen days from the date of appearance of the parties.
Sd/-
JUDGE NB*