Remanded

The Commissioner the Corporation of City of v. Smt.K.v.Kalyani

Karnataka HC12 Oct 2020WP/17768/2013

Case brief

AI extract

What is this about?

A bench set aside three confirmation orders passed by a District Judge dismissing Corporation appeals, holding that the Corporation failed to refer repair/alteration questions to the Standing Committee as required by the Act. The matters were remitted to the Corporation for fresh adjudication.

What did the court decide?

Writ petitions allowed; Confirmation orders of the II Addl. District Judge set aside; Matters remitted to the Corporation to reconsider and pass appropriate orders within six months.

The Commissioner the Corporation of City of Vs… — Municipal and Town Planning | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF OCTOBER, 2020

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BEFORE

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THE HON’BLE MR.JUSTICE M NAGAPRASANNA

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WRIT PETITION NO.17771/2013 (LB-RES) C/W. WRIT PETITION NO.17768/2013 (LB-RES), WRIT PETITION NO.17769/2013 (LB-RES)

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IN WRIT PETITION NO.17771/2013:

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BETWEEN:

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THE COMMISSIONER THE CORPORATION OF CITY OF MANGALORE, LALBAGH, MANGALORE-575 003.

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...PETITIONER

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(BY SRI A.K. VASANTH, ADVOCATE)

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AND:

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MOIDIN BAVA S/O AHMED BAVA, AGED ABOUT 55 YEARS, R/AT D.NO.1/86:12 NEAR PUMP HOUSE, PAJIMOGERU POST, MANGALORE TALUK-575 003.

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…RESPONDENT

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(BY SRI NATARAJA BALLAL, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 31.1.2013 PASSED THE LEARNED II ADDL. DISTRICT JUDGE, D.K. MANGALORE IN M.A.NO.2/2007 VIDE ANNEXURE-C AND ETC.

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IN WRIT PETITION NO.17768/2013:

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BETWEEN:

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THE COMMISSIONER THE CORPORATION OF CITY OF MANGALORE, LALBAGH, MANGALORE-575 003.

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...PETITIONER

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(BY SRI A.K. VASANTH, ADVOCATE)

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AND:

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SMT. K.V. KALYANI AGED ABOUT 81 YEARS W/O LATE KRISHNA MARAR SHRUTHI NILAYA, URVA, HOIGEBAILU MANGALORE-575 006 REP. BY HER GPA HOLDER.

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SMT. K. SUMITHRA W/O K GOVINDAN AGED ABOUT 55 YEARS SHRUTHI NILAYA, URVA HOIGEBAILU MANGALORE-575 006.

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…RESPONDENTS

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( K.V. KALYANI REP. BY GPA HOLDER K. SUMITHRA RESPONDENT-SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 18.2.2013 PASSED THE LEARNED II ADDL. DISTRICT JUDGE, D.K. MANGALORE IN M.A.NO.8/2006 VIDE ANNEXURE-C AND ETC.

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IN WRIT PETITION NO.17769/2013:

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BETWEEN:

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THE COMMISSIONER THE CORPORATION OF CITY OF MANGALORE, LALBAGH, MANGALORE-575 003.

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...PETITIONER

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(BY SRI A.K. VASANTH, ADVOCATE) AND:

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MRS. ASUMPTHA MAIA D’SOUZA W/O FRANCIS FRANKY D’SOUZA AGED ABOUT 44 YEARS R/AT ‘EVERSHINE GARDEN’ THIRUVAIL VILLAGE VAMANJOOR MANGALORE TALUK-575 003.

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…RESPONDENT

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(BY SRI G. RAVISHANKAR SHASTRY, ADVOCATE)

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THESE WRIT PETITIONS ARE COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY

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THROUGH VIDEO CONFERENCE THE COURT MADE THE FOLLOWING:-

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ORDER

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The petitioner – the Mangalore City Corporation has preferred these writ petitions challenging the orders dated 31.01.2013 in M.A.No.2/2007, 18.02.2013 in M.A.No.8/2006 and 18.02.2013 in M.A.No.21/2006 respectively, passed by the II Additional District Judge, D.K., Mangalore (hereinafter referred to as ‘the trial Court’ for short), on a short ground that the Trial Court ought to have remitted the matters back to the petitioner – Mangalore City Corporation (hereinafter referred to as ‘the Corporation’ for short) for a fresh consideration and adjudication.

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Brief facts of the case leading to filing of the W.P.No.17771/2013 are that, the respondent was in occupation of door No.1/86:12 as a tenant for about

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35 years. It transpires that the house of the respondent was in a dilapidated condition making the members living in the house miserable. The respondent sought permission of the landlady to carry out necessary repairs and thereafter, the respondent carried out the repairs to the premises in question and made it fit for his living.

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On 05.10.2006, the petitioner - Corporation

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issued a notice under Section 321 (1) and (2) of the Karnataka Municipal Corporation Act, 1976, (hereinafter referred to as ‘the Act’ for short) calling upon the respondent to show cause as to why the construction should not be ordered for demolition. On 12.10.2006, the respondent gave a reply to the Commissioner of the petitioner – Corporation submitting that he had only carried out necessary repairs and not made any construction or renovation as contained in the notice. The respondent also

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requested the petitioner to refer the matter to the Standing Committee in terms of Section 320 of the Act. The petitioner – Corporation chose not to refer the matter to the Standing Committee and rejected the reply given by the respondent and passed a confirmation order dated 13.12.2006 directing the respondent to demolish the construction that is made within 15 days, failing which the Corporation would demolish it at the cost of the respondent.

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Brief facts of the case leading to filing of the W.P.No.17768/2013 are that, the respondent, who is the owner of the property bearing R.S.No.67/2A.1A situated at ward No.1 within the Corporation limits after obtaining a license on the basis of a sanctioned plan, constructed the building in the aforesaid site. On the ground that the respondent was constructing the building unauthorisedly, in contravention of the sanctioned plan as the new construction was being

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done beyond the permitted limit and in violation of the building bylaws, was issued with a show cause notice on 05.01.2006 calling upon him as to why a provisional order under Section 321 (1) and (2) of the Act, should not be issued and confirmed. Since the respondent had not responded to the notice, the Corporation issued a confirmation order under Section 321 (3) of the Act, ordering demolition of the unauthorized construction in terms of its confirmation order dated 25.01.2006.

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Brief facts of the case leading to filing of the W.P.No.17779/2013 are that, the respondent who is the owner of the property bearing R.S.No.124 /1A was issued with a notice under Section 308 of the Act for illegally converting an area meant for parking into a residential-cum-commercial purpose. A notice was issued under Section 321 (2) of the Act, calling upon the respondent to remove the shop which was

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constructed in the parking area. Though the notice was served on the respondent, no confirmatory order was issued until 01.05.2006 and on issuance of order a confirmatory under Section 321 (3) of the Act on 01.05.2006, the respondent approached the Trial Court.

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Aggrieved by the aforesaid orders in all the three cases, the respondents invoking Section 443 (A) of the said Act, approached the Trial Court on the ground that they have not carried out any new construction, structural alteration, construction in violation of the sanctioned plan and conversion of parking area into commercial activities.

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The Trial Court though has passed separate orders in all the aforesaid cases, the issue being common are taken up together in these writ petitions.

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The Trial Court concluded that the procedure

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followed by the Commissioner is contrary to Section 320 (2) of the said Act, which reads as follows:

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”Section 320(2): If any question arises as to whether any addition or alteration is a necessary repair not effecting the position or dimension of a building or hut or room in a building there, such question shall be referred to the standing committee, whose decision shall be final.”

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In terms of the aforesaid provision, if any

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question that would arise with regard to a building concerning its repair, structural alteration or any additional construction, such question would be placed before the Standing Committee. While the Trial Court held that the matters were not referred to the Standing Committee and there was violation of procedure contemplated under the Act, allowed the

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appeals filed before by the respondents by setting aside the confirmation orders passed by the petitioner

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Corporation.

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When the finding of the Trial Court was that the procedure had not been followed in terms of the said Act, the Trial Court ought to have remanded the matters to the hands of the petitioner – Corporation for consideration afresh to proceed in accordance with law.

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Learned counsel appearing for all the parties in all the cases in unison accept that the Trial Court was in error in not remanding the matters back to the Corporation to reconsider the matters in accordance with law. Hence, the following:

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ORDER

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a. The writ petitions are allowed.

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b. The orders dated 31.01.2013 in M.A.No.2/2007, dated 18.02.2013 in M.A.No.8/2006 and dated 18.02.2013 in M.A.No.21/2006, passed by the II Additional District Judge, D.K., Mangalore are hereby set aside.

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c. The matters are remitted back to the petitioner – Corporation to reconsider the matter in accordance with law after affording an opportunity to the respondents and pass appropriate orders within a period of six months from the date of receipt of a copy of the order.

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Sd/JUDGE

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nvj

The Commissioner the Corporation of City of v. Smt.K.v.Kalyani

Case brief

What is this about?

What did the court decide?

The Commissioner the Corporation of City of v. Smt.K.v.Kalyani

Case brief

What is this about?

What did the court decide?

What the court decided

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