Allowed

Shashikanth B Jogi v. Municipal Commissioner

Karnataka HC30 May 2023WP/1026/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a Writ Petition seeking quashing of an illegal notice issued under Section 187 of the Karnataka Municipalities Act, 1964 for removal of a truss-sheet. The Court held that the notice was passed after a lapse of over 18 years without considering prior sanctions and licenses, and set it aside with liberty for authorities to act in accordance with law. No costs.

What did the court decide?

The Writ Petition was allowed. The impugned Notice bearing No. Unasa.A3.CR.214/2020-21 dated 20.12.2022 issued by the Respondent No.1 was quashed. Liberty was reserved to the respondents to take actio

Shashikanth B Jogi Vs Municipal Commissioner — Property and Title | Karnataka HC (2023)

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WP No. 1026 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF MAY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C.M. POONACHA WRIT PETITION NO. 1026 OF 2023 (LB-RES)

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BETWEEN:

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SHASHIKANTH B JOGI S/O BALAKRISHNA JOGI AGED ABOUT 56 YEARS R/AT MANDAVI RESIDENCY SHRI BEEDU, UDUPI-576101 REP BY ITS GPA HOLDER NAMELY VIMALA JOGI W/O SHASHIKANTH B JOGI AGED ABOUT 50 YEARS R/AT MANDAVI RESIDENCY SHRI BEEDU, UDUPI-576101.

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…PETITIONER

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(BY SRI. PAVANA CHANDRA SHETTY H., ADVOCATE)

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AND:

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Digitally signed by NIRMALADEVI Location: HIGH COURT OF KARNATAKA

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MUNICIPAL COMMISSIONER UDUPI CITY MUNICIPALITY UDUPI-576101.

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THE DIRECTOR MUNICIPAL CORPORATION V V TOWER DR AMBEDKAR VEEDHI BENGALURU-560001.

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EXECUTIVE ENGINEER UDUPI CITY MUNICIPALITY UDUPI-576101.

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MR RAGUPATHI BHAT MLA, UDUPI-576101.

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…RESPONDENTS

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(BY SRI. ABDULLA T I., ADVOCATE FOR R1 TO R3)

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WP No. 1026 of 2023

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THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE COSNTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTICE DATED 20.12.2022, BEARING NO. UNASA.A3.CR.214/2020-21 ISSUED BY THE R1/MUNICIPAL COMMISSIONER , UDUPI CITY MUNICIPALITY, UDUPI, SAME HAS ISSUED FOR REMOVE THE TRUSS- SHEET WHICH IS BUILT FOR PROTECTION DURING THE TIME OF HEAVY RAIN IN THE MONSOON PERIOD AND SHARP SUN LIGHT DURING THE PERIOD OF SUMMER IN PETITIONER PROPERTY PRODUCED AS ANNEXURE - A AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Heard the learned counsel for the Petitioner.

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The present Writ Petition is filed seeking for the following reliefs:

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"a. Quash the Impugned Notice dated 20.12.2022, bearing its No.Unasa.A3.CR.214/2020-21 issued by the Respondent No.1/ Municipal Commissioner, Udupi City Municipality, Udupi, same has issued for remove the truss- sheet which is built for protection during the time of heavy rain in the monsoon period and sharp sun light during the period of summer in petitioner's property produced as ANNEXURE-A.

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b. Direct the 1" Respondent Authority to pay the damages of Rs.5,00,000/- for illegal structure and repeated illegal notice which is not stand under the law.

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c. Issue any other writ, order or direction and such other order or direction as this Hon'ble Court may

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WP No. 1026 of 2023

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deems fit to grant in the facts and circumstances of the case."

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Annexure-A notice dated 20.12.2022 has been

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issued under Section 187 of the Karnataka Municipalities Act, 1964 (for short 'Act') with regard the alleged illegal construction put up by the Petitioner.

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Learned counsel for the Petitioner Shri Pavan Chandra Shetty submits that by virtue of sanction dated 09.02.2004 (Annexure-C to the Writ Petition), the Petitioner has been permitted to construct ground + first floor and that pursuant to the same, the Respondents have also issued licence dated 27.02.2004 (Annexure-D to the Writ Petition). It is the case of the Petitioner that she has put up construction in accordance with the sanction accorded.

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The impugned notice dated 20.12.2022 has been issued under Section 187 of the Act, the relevant portions of which reads as under:

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"187. Notice of new buildings . -(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

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WP No. 1026 of 2023

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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. …

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(2) No construction or reconstruction referred to in sub-section (1) shall be begun unless and until permission for the execution of the work is granted under this Section.

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(3) Save as otherwise provided in this Act or the rules and bye-laws made thereunder, the municipal council may.-

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(a) either give permission to construct, alter, add or reconstruct according to the plan and information furnished; "

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It is relevant to note that Section 187 of the Act is with regard to the new buildings. Further, while issuing impugned notice dated 20.12.2022, the Respondents have not taken into consideration the sanction dated 09.02.2004 and the licence dated 27.02.2004. It is also relevant to note that there is also a provision under Section 187-A for regularization.

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It is the case of the Petitioner that on the second floor, only temporary sheets have been put due to climatic exigencies and would not tantamount an unauthorized/unlawful construction.

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WP No. 1026 of 2023

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Having regard to the aforementioned, it is clear that the impugned notice dated 20.12.2022 has been issued after a lapse of more than 18 years. Notwithstanding the same, the permission accorded by respondent-authority has not been noticed and it has been issued as if the Petitioner has put up completely unauthorized construction. The Petitioner has also furnished his reply dated 23.12.2022 (Annexure-B to the Writ Petition), consequent to which since he has approached this Court. As a result of the interim order dated 20.1.2023, no further proceedings have been taken.

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In view of the aforementioned, the impugned notice dated 20.12.2022 is liable to be set aside. However, the respondent-authorities to take necessary action in accordance with law after taking into consideration the sanction accorded to the Petitioner and other relevant factors vis-à-vis the building in question.

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Hence, I proceed to pass the following:

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ORDER

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i)Writ Petition is allowed.

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WP No. 1026 of 2023

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ii) Notice bearing No.Unasa.A3.CR.214/2020-21 dated 20.12.2022 (Annexure-A to the Writ Petition) issued by respondent No.1 is quashed.

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iii) Liberty is reserved to respondents to take action in accordance with law after consideration of the relevant provisions as noticed above.

No costs.

SD/JUDGE

List No.: 38 Sl No.: 10

Shashikanth B Jogi v. Municipal Commissioner

Case brief

What is this about?

What did the court decide?

Shashikanth B Jogi v. Municipal Commissioner

Case brief

What is this about?

What did the court decide?

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