Disposed

Huzur Ahamad Naik S/O Mohammad Nazir Ahamad v. the City Municipal Council

Karnataka HC2 Apr 2024WP/100936/2024

Case brief

AI extract

What is this about?

In a writ petition under Articles 226 and 227 of the Constitution of India, the court disposed of the matter without judicial investigation into disputed questions of fact regarding building permission and alleged encroachment. The High Court held that since the respondent had initiated inspection and notice proceedings, the writ petition did not require further inquiry.

What the court decided

AI extract

Huzur Ahamad Naik S/O Mohammad Nazir Ahamad Vs the… — Landlord and Tenant | Karnataka HC (2024)

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NC: 2024:KHC-D:6014 WP No. 100936 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 2^ND DAY OF APRIL, 2024 BEFORE

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THE HON'BLE MR JUSTICE RAVI V.HOSMANI WRIT PETITION NO. 100936 OF 2024 (LB-RES)

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BETWEEN:

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HUZUR AHAMAD NAIK, S/O. MOHAMMAD NAZIR AHAMAD, AGE: 54 YEARS, OCC: BUSINESS, R/O. AMEEN RESIDENCY, BEHIND NEELAM LODGE, OPP. MAIN BUS STAND, KOPPAL, TQ & DIST: KOPPAL-583231.

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…PETITIONER

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(BY SRI AVINASH BANAKAR, ADVOCATE)

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AND:

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THE CITY MUNICIPAL COUNCIL, KOPPAL, DIST: KOPPAL-583231, REPRESENTED BY ITS COMMISSIONER.

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THE CITY MUNICIPAL COUNCIL, KOPPAL, DIST: KOPPAL, REPRESENTED BY ITS MAYOR-583231.

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CHANDRASHEKAR LAXMAN KATTIMANI Digitally signed byCHANDRASHEKAR LAXMAN KATTIMANI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2024.04.05 11:55:17 +0530

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SAYEED HABIB HUSSAIN, S/O. SAYEED SHABBIR HUSSAIN, AGE: 41 YEARS, OCC: BUSINESS, R/O. PADAKI LAYOUT, HASSAN ROAD, KOPPAL, TQ & DIST: KOPPAL-583231.

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…RESPONDENTS

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(BY SRI BHUSHAN B. KULKARNI, ADV. FOR R1 & R2; SRI CHANDRASHEKAR R. HIREMATH, ADV. FOR R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHED THE IMPUGNED ENDORSEMENT DATED: 20-11-2023 BEARING NO.KONASA: KATTADA: 2023-24/924 PASSED BY THE RESPONDENT NO. 2 VIDE ANNEXURE-G, IN THE INTEREST OF JUSTICE AND EQUITY; ISSUE A WRIT IN THE NATURE OF MANDAMUS DIRECTING THE RESPONDENT NO.1 AND 2 TO MAKE SPOT INSPECTION TO THE LAND OF THE RESPONDENT NO.3 AND TO TAKE APPROPRIATE ACTION IN

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2 - NC: 2024:KHC-D:6014 WP No. 100936 of 2024

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ACCORDANCE OF THE LAW IN VIEW OF ANNEXURE-F AND F1, IN THE INTEREST OF JUSTICE AND EQUITY. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This writ petition is filed seeking for following reliefs:

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a) Issue a writ of in the nature of certiorari quashed the impugned endorsement dated: 20-11-2023 bearing no.KoNaSa: KATTADA: 2023-24/924 passed by the respondent no. 2 vide Annexure-G, in the interest of justice and equity.

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b) Issue a writ in the nature of mandamus directing the respondent no.1 and 2 to make spot inspection to the land of the respondent no.3 and to take appropriate action in accordance of the law in view of Annexure-F and F1, in the interest of justice and equity.

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Sri Avinash Banakar, learned counsel for

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petitioner submitted that petitioner is owner of land bearing M.B.no.9-2-23/2 and 9-2-116/A situated at Ward no.24, Koppal. It was submitted that respondent no.3 was owner of land bearing M.B.no.9-2-141/1, Plot no.1597 purchased on

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3 - NC: 2024:KHC-D:6014 WP No. 100936 of 2024

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14.09.2020. It was submitted that in order to construct a house therein, respondent no.3 had applied building permission from respondents no.1 and 2 as per Annexure-C. It was submitted that since site abutted Railway line, respondent no.3 was required to approach Railway Department and obtain No Objection Certificate (‘NOC’, for short). However, without obtaining NOC, respondent no.3 was sanctioned building permission by respondents no.1 and 2. It was further submitted that in between petitioner’s site and respondent no.3, there was a road and permission was granted for construction on road portion also. Under such circumstances, petitioner filed complaint to respondents no.1 and 2 requesting them to make spot inspection and take action. After receipt of complaint as per Annexures-F and, F1, respondents no.1 and 2 issued endorsement as per Annexure-G without proper verification, constraining petitioner to challenge same before this Court.

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It was submitted that this Court on 14.02.2024

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had directed respondent no.1 to inspect property of respondent no.3 to ascertain whether there is sanction of

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4 - NC: 2024:KHC-D:6014 WP No. 100936 of 2024

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building plan, whether construction is in accordance with sanctioned plan or building bylaws, whether any NOC was obtained from railway authorities and whether construction put up by respondent no.3 encroached on public road. It was submitted that in pursuance of said direction, survey was conducted on 26.02.2022, but measurement done was improper and in any case, even as per respondents, there was violation and for which notices were issued to respondent no.3, which would substantiate petitioner’s contentions and sought for allowing writ petition.

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On other hand, Sri Chandrashekar R.Hiremath, learned counsel for respondent no.3 sought to oppose writ petition. It was submitted that categorical statement assertion made by respondent no.1 in affidavit filed in support of I.A.no.2/2024 would clearly indicate that there was no encroachment on public road and that NOC was infact obtained from railway authorities. Said assertion would vindicate case of respondent that there was no encroachment on public road and building plan was sanctioned after taking note of NOC issued to petitioner’s

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5 - NC: 2024:KHC-D:6014 WP No. 100936 of 2024

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vendor. Learned counsel categorically submitted that respondent no.3 had not submitted any fresh building plan, which was different than building plan approved in favour of his vendor and therefore sought for dismissal of writ petition.

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Insofar as notices appended to application, it was submitted that proposed action was illegal and arbitrary and that respondent no.3 would file objections and face action. It was further submitted that construction put up by respondent was in accordance with building permission and there was no violation.

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Heard learned counsel and perused writ petition

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record.

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From above, it is seen that writ petition is against issuance of building permission to respondent no.3 who is neighbouring plot owner of petitioner. Main ground urged in opposition of building permission was that plot was abutting Railway line and therefore obtaining no objection from Railways was necessary and that in between plot of petitioner and respondent no.3, there was a road which was

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6 - NC: 2024:KHC-D:6014 WP No. 100936 of 2024

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encroached upon by respondent no.3 and respondents no.1 and 2 had failed to take action there against.

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However, perusal of documents produced along with I.A.no.2/2024 by respondents no.1 and 2 and affidavit filed in support of application would reveal that a categorical assertion is made by respondent no.1 that there is no encroachment by respondent no.3 on public road and NOC was obtained. It is also seen that a categorical statement is made by respondent no.3 that there was no change in building plan submitted by respondent no.3 and that same was as submitted by vendor of respondent no.3 based on which permission was granted as per Annexure-D. It was further submitted that respondent no.3 was proceeding with construction as per building plan.

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From above, main ground on which writ petition is filed would not be substantiated any further enquiry in this regard would amount to in investigating into disputed questions of fact. Secondly, respondent no.1 has initiated action against respondent no.3 for violation as per notices appended to I.A.no.2, in pursuance of spot inspection.

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7 - NC: 2024:KHC-D:6014 WP No. 100936 of 2024

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Therefore, instead of delving into matter any further, writ petition stands disposed of.

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Petitioner is at liberty to approach appropriate forum in case he intends to dispute contents of inspection report and respondents no.1 and 2 shall pursue proceedings initiated as per notices dated 26.02.2024 and 06.03.2024 in accordance with law after giving opportunity to affected parties. It would be expected of respondent no.1 to expedite action in this regard. With above observations, writ petition is disposed of.

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In view of disposal of writ petition, pending application stands disposed.

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Sd/JUDGE

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CLK

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List No.: 2 Sl No.: 7

Huzur Ahamad Naik S/O Mohammad Nazir Ahamad v. the City Municipal Council

Case brief

What is this about?

What the court decided

Huzur Ahamad Naik S/O Mohammad Nazir Ahamad v. the City Municipal Council

Case brief

What is this about?

What the court decided

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