Partly allowed

M/S Harohalli Land Limited Liability Partnership v. Kanakapura Planning Authority

Karnataka HC30 May 2023WP/6551/2023

Case brief

AI extract

What is this about?

A writ petitioner challenging a notice ordering demolition of a compound wall sought quashing. The High Court read down the notice to a show-cause notice, quashed the demolition directive, and ordered a preliminary inquiry with opportunities for both parties before any coercive action is taken.

What did the court decide?

The portion directing demolition is quashed; the notice is read down as a show-cause notice. Petitioner must file a response, and the authority must conduct an inquiry with due process before taking c

M/S Harohalli Land Limited Liability Partnership Vs… — Property and Title | Karnataka HC (2023)

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WP No. 6551 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. 6551 OF 2023 (LB-RES)

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BETWEEN:

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M/S. HAROHALLI LAND LIMITED LIABILITY PARTNERSHIP REPRESENTED BY ITS DESIGNATED PARTNER SRI. S. VENUGOPAL NAIDU S/O. LATE NAGAMA NAIDU AGED ABOUT 74 YEARS NO.240, 1^ST STAGE 32^ND CROSS, 7^TH BLOCK JAYANAGAR BANGALORE - 560 082. (BY SRI: SATISH .K., ADVOCATE)

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…PETITIONER

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AND:

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Digitally signed by NIRMALADEVI Location: HIGH COURT OF KARNATAKA

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KANAKAPURA PLANNING AUTHORITY REPRESENTED BY JOINT DIRECTOR AND MEMBER SECRETARY NO.469/CA, CO-OPERATIVE SOCIETY EXTENSION, AGRAHARA NEW COLONY THUNGANI POST KANAKAPURA TALUK KANAKAPURA RAMANAGARA - 562 117. COMES UNDER GOVERNMENT OF KARNATAKA

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KANAKAPURA PLANNING AUTHORITY REPRESENTED BY ITS MEMBER SECRETARY NO.469/CA, CO-OPERATIVE SOCIETY EXTENSION AGRAHARA NEW COLONY THUNGANI POST KANAKAPURA TALUK KANAKAPURA

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WP No. 6551 of 2023

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RAMANAGARA - 562 117. COMES UNDER GOVERNMENT OF KARNATAKA

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…RESPONDENTS

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(BY SRI: YOGESH D NAIK, ADVOCATE FOR R1 & R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM RESPONDENT NO.1 PERTAINING TO THE IMPUGNED NOTICE/ ORDER DATED 24/02/2023 (ANNEXURE-A) AND QUASH IMPUGNED NOTICE/ORDER DATED 24/02/2023 BEARING NO.KAYOPRAA/LAO/36/2016-17/2623 PASSED BY RESPONDENT NO.1 (ANNEXURE-A) AND ETC.,

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

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ORDER

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Heard Sri K Satish, learned counsel for the petitioner and Sri Yogesh D Naik, learned counsel for respondent Nos.1 and 2.

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The writ petition is filed challenging the notice/order bearing No.KaYoPraa/LAO/36/2016-17/2623 dated 24.02.2023 passed by respondent No.1.

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The relevant facts necessary for consideration of the present writ petition are that, the petitioner formed a residential layout which was duly approved by the respondentauthority. The plan was approved on 03.03.2017 and the petitioner acquired rights to form roads of the layout by virtue of Deed of Easement dated 21.10.2020 (Annexure-D to the writ

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WP No. 6551 of 2023

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petition) and also executed Relinquishment Deed dated 10.06.2021 in favour of Harohalli Gram Panchayat (Annexure-E to the writ petition). The respondent-authority has also by communication dated 29.06.2021 (Annexure-H to the writ petition) released the sites. Pursuant to the complaint given by the adjacent land owner in Sy.No.334/2, the respondentauthority had issued the impugned notice dated 24.02.2023 calling upon the petitioner to demolish the compound wall and to file objections to the allegations that he has encroached the public road, which notice is impugned in the present writ petition.

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Sri K Sathsih, learned counsel for the petitioner contended that the respondent-authority at the instance of adjacent land owner has directed demolition of the compound wall. He submits that the petitioner has not encroached on any public road and has developed a road, which it has acquired at its cost.

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Per contra, Sri Yogesh D Naik, learned counsel for

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the respondents contended that the notice dated 24.02.2023 is merely a show cause notice issued to the petitioner and after

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its reply, the respondent-authority would pass appropriate orders.

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In response to the said submission made on behalf of the respondents, learned counsel for the petitioner has pointed out that, in the impugned notice/order dated 24.02.2023, the petitioner has been ordered to demolish the compound wall to enable access of the road in the layout to the adjacent land owner.

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To the specific query as to the legal basis of issuance of the aforementioned notice dated 24.02.2023 issued by the respondent-authority, Sri Yogesh D Naik, learned counsel would rely on Section 17(4) of the Karnataka Town and Country Planning Act, 1961 (hereinafter referred to as 'the Act' for brevity) and Rule 36 of the Karnataka Planning Authority Rules, 1965 (hereinafter referred to as 'the Rules' for brevity).

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Section 17(4) of the Act states as follows:

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"17(4) If any person does any work in contravention of sub-section (1) or in contravention of the modifications and conditions of the sanction granted under sub-section (2) or despite refusal for the sanction under the said

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WP No. 6551 of 2023

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sub-section (2), the Planning Authority may direct such person by notice in writing to stop any work in progress and after making an inquiry in the prescribed manner, remove or pull down any work or restore the land to its original condition."

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9. Rule 36 of the Rules states as follows:

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"36. Particulars regarding layout plan and period for sanction of plan under Section 17 -

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(1) Every person submitting a plan for sub-division of plot or a layout of a private street to the Planning Authority for sanction under Section 17 shall submit such plan in triplicate which shall not be less in size than the one to be prepared on a scale of 1 : 600 (1 inch - 50 inches) and shall include therein such of the following particulars, as may be relevant to the layout, namely,

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(i) sub-divisions of his plot and details of proposed land use;

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(ii) site plan showing the existing access to the land included in the layout and the surrounding lands;

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(iii) xxx

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Having regard to the contention put forth by both the learned counsel, the relevant stipulations of law relied on by the learned counsel for the respondents and the apprehension of the petitioner, it is necessary to note that Section 17(4) of the Act vest with the authority the power to inquire as to whether the work has been carried out in terms of the sanction granted. Rule 36(2) also stipulates that the particulars of the layout plan, which is sanctioned under Section 17 and Rule 36(1)(ii) of the Rules specifically point out the particulars regarding access to the land in the layout and the surrounding lands to be mentioned.

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A combined reading of Section 17(4) of the Act and Rule 36(1)(ii) of the Rules, undoubtedly vest with the authority the power to inquire into the fact as to whether the condition of the sanction granted has been followed including the access of the land. However, the apprehension of the petitioner also cannot be said to be unfounded having regard to the manner in which the impugned notice dated 24.02.2023 is worded,

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wherein, the petitioner has been called upon to demolish the compound wall.

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In view of the aforementioned, it is necessary that the respondent-authority be permitted to conduct enquiry so as to ensure as to the stipulation contained under Section 17(4) of the Act read with Rule 36(1)(ii) of the Rules are followed and the petitioner ought to be given adequate opportunity to participate in the enquiry and put forth all the necessary/relevant facts on record. Till completion of the enquiry and if any adverse orders are passed against the petitioner, adequate time is required to be granted before any coercive action is initiated against the petitioner by the respondent-authority. Hence, it is necessary to read down the impugned notice dated 24.02.2023 to be a show cause notice notifying the petitioner to respond to the complaint made by the adjacent land owner regarding blocking of common access road. The aspect in the said impugned notice dated 24.02.2023, wherein the respondent-authority has called upon the petitioner to demolish the compound wall is required to be quashed.

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In view of the aforementioned, I pass the following:

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ORDER

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(i) The writ petition is partly allowed.

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(ii) The notice/order bearing No.KaYoPraa/LAO/ 36/2016-17/2623 dated 24.02.2023 passed by respondent No.1 is read down to be construed as show cause notice entitling the petitioner to respond to the same.

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(iii) The portion of the notice/order bearing No.KaYoPraa/LAO/36/2016-17/2623 dated 24.02.2023 passed by respondent No.1, directing the petitioner to demolish the compound wall is quashed.

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(iv) The petitioner shall file its response to the said

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notice dated 24.02.2023 on or before 30.06.2023.

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(v) Pursuant to the reply furnished by the petitioner,

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the respondent-authority shall conduct an enquiry after notifying the petitioner and affording the petitioner an adequate opportunity to participate in the said enquiry and shall pass appropriate orders, in accordance with law, as noticed above.

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(vi) It is also open to the respondent-authority to notify

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the complainant regarding enquiry to be conducted to afford an opportunity to the complainant to participate in the said enquiry.

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(vii) In the event of any adverse order being passed against the petitioner, the respondent-authority shall provide adequate time to the petitioner before any coercive action is initiated to enable the petitioner to explore the remedies available to it under law.

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No costs.

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Sd/JUDGE

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*bgn/-

M/S Harohalli Land Limited Liability Partnership v. Kanakapura Planning Authority

Case brief

What is this about?

What did the court decide?

M/S Harohalli Land Limited Liability Partnership v. Kanakapura Planning Authority

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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