Disposed

Sri R Jagadish Naik v. State of Karnataka

Karnataka HC24 Oct 2024WP/1639/2019

Case brief

AI extract

What is this about?

Writ petition challenging Show Cause Notice demanding penalty for unauthorized construction of an educational institution. Court reserved the petition with liberty to file detailed objections, leaving merits of claimed deemed permission and tax exemption open for future consideration.

What did the court decide?

Petition disposed with liberty to file detailed objections within four weeks. Matter reserved for further consideration regarding penalty liability.

Sri R Jagadish Naik Vs State of Karnataka — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:42981 WP No. 1639 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF OCTOBER, 2024 BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 1639 OF 2019 (LB-RES)

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BETWEEN:

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SRI R JAGADISH NAIK S/O RAJU NAIK, AGED ABOUT 42 YEARS, RESIDING AT 2^ND FLOOR, MEGHAVATH BUILDING, AGARAHARA STREET, CHAMRAJANAGAR-571313.

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…PETITIONER

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(BY SRI. SAGAR B B.,ADVOCATE)

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AND:

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Digitally signed by ANAND N Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA REP. BY ITS SECRETARY, MUNICIPAL ADMINISTRATION, M.S.BUILDING, BENGALURU-560001.

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THE DIRECTOR

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DIRECTORATE OF MUNICIPAL ADMINISTRATION, 9^TH FLOOR, VISVESHWRAIAH TOWERS, BENGALURU-560001.

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THE DEPUTY COMMISSIONER CHAMARAJANAGARA DISTRICT,

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NC: 2024:KHC:42981 WP No. 1639 of 2019

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CHAMARAJANAGAR-571313.

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THE COMMISSIONER CHAMARAJANAGAR RAMASAMUDRA, DEVELOPMENT AUTHORITY, CHAMARAJANAGAR-571313.

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THE COMMISSIONER CITY MUNICIPAL COUNCIL, CHAMARAJANAGAR-571313.

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…RESPONDENTS

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(BY SMT.CHANDINI S, HCGP FOR R1-R3; SRI. A.V. GANGADHARAPPA, ADVOCATE FOR R4; SRI. A. NAGARAJAPPA, ADVOCATE FOR R5)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTICE DATED 27.09.2018 ISSUED BY R-4 DEMANDING A SUM OF RS. 35,84,763/- TOWARDS THE PENALTY VIDE ANNEXUER-N; QUASH THE NOTICE DATED 12.10.2018 DEMANDING RA.9,90,390/- ISSUED BY THE R-4 TOWARDS THE DEVELOPMENT FEE VIDE ANNEXURE-Q AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD

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NC: 2024:KHC:42981 WP No. 1639 of 2019

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ORAL ORDER

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The petitioner is the owner of land measuring 3

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acres 18 guntas in Sy.No.501/1 of Chamarajanagar Village, Kasaba Hobli, Chamarajanagar Taluk and District [ the subject property ]. The petitioner asserts he is also a member of a Trust which is running an Educational Institution in the subject property. The petitioner is aggrieved by the Show Cause Notice dated 27.09.2018 [ Annexure-N ]. The fifth respondent has issued this notice calling upon the petitioner to show cause against liability to pay twice the property tax payable as penalty for putting up construction in the subject property without necessary permission under the Karnataka Municipalities Act, 1964 [for short, ' the Municipalities Act' ].

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The petitioner contends that the Trust, with which he is associated, was running an Educational Institution in a rented premises but the Trust was under constraint as it had to vacate such

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NC: 2024:KHC:42981 WP No. 1639 of 2019

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building and shift to a new construction and therefore, he started putting up construction in the subject property apart from taking certain actions. As regards these actions, the petitioner relies upon the following.

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Firstly, he submitted a request with the fifth respondent [the Chamarajanagar City Municipal Council] on 03.04.2008, which would be a notice for the permission as is contemplated under Section 187 of the Municipalities Act.

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Secondly, he requested the jurisdictional Deputy Commissioner to permit diversion of the land from agricultural to non-agricultural purposes under Section 95 of the Karnataka Land Revenue Act 1964 [ the KLR Act' ].

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5 - NC: 2024:KHC:42981 WP No. 1639 of 2019

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• Thirdly, he approached the Planning Authority under the Karnataka Town and Country Planning Act, 1961 [ for short, " the KTCP Act" ] for plan approval to use his property for school, community hall, a petrol retail outlet and park.

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The petitioner contends that the Deputy Commissioner has permitted diversion on 17.01.2009 and the Planning Authority has granted approval on 05.08.2010, but the fifth respondent, which was required to pass orders either under Section 187(3) or 187(4) of the Municipalities Act, did not take any action. In fact, the petitioner has referred to a demand by the fifth respondent for payment of Rs.13,24,500/- as cost of development with the option to the petitioner to execute work himself, and that he has formed the road as is required in terms of such orders and at his cost.

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NC: 2024:KHC:42981 WP No. 1639 of 2019

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Sri. B. B. Sagar, the learned counsel for

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the petitioner relying upon the aforesaid

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circumstances, submits that:

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[i] if the fifth respondent did not act either under Section 187(3) or 187(4) of the Municipalities Act within the timeline stipulated, the petitioner would have the advantage of the deemed permission under the provisions of Section 187(5) thereof and therefore, the fifth respondent cannot contend that the building is without necessary approval and demand penalty,

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[ii] the petitioner will not be liable to pay penalty because his property, which is used for educational purposes, is exempt from tax, and the construction for Educational Institution is

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7 - NC: 2024:KHC:42981 WP No. 1639 of 2019

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undertaken only because of the exigent circumstances as stated

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above.

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Sri. A. Nagarajappa, the learned counsel

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for the fifth respondent, submits that the petitioner's reliance upon Section 187(5) of the Municipalities Act, to assert deemed approval must be considered in the light of the fact that as of the date of the petitioner’s application on 03.04.2008, there was neither diversion under the KLR Act nor approval of the layout under the KTCP Act. However, the learned counsel fairly submits that the fifth respondent would extend a due opportunity to the petitioner to place on record the circumstances that he relies upon to substantiate his case that he cannot be called upon to pay penalty.

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The question whether the petitioner could

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be made liable to pay penalty for putting up construction without permission must be examined

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NC: 2024:KHC:42981 WP No. 1639 of 2019

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in the light of the two conflicting circumstances viz ., (a) that the petitioner relies upon the consequences that would follow as is envisaged under Section 187(5) of the Municipalities Act, and

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(b) that the diversion under Section 95 of the KLR Act and the approval of layout is during the course of construction and after the notice of construction under Section 187 of the Municipalities Act. The consideration of these circumstances would be different from the consideration of the question whether the petitioner's property would be exempt from the property tax because it is used for educational purposes.

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The petitioner's liability to pay penalty in terms of the impugned notice, will have to be examined independent of the issue of exemption. This Court must opine that the exemption from levy of property tax for a property used for Charitable Educational purposes cannot exempt liability to pay

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NC: 2024:KHC:42981 WP No. 1639 of 2019

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penalty if there is default in obtaining due permission for construction. However, with the fifth respondent stating that the question of liability in the light of the other circumstances would be considered if the petitioner were to place all materials on record, this Court is persuaded to dispose of the petition with liberty to the petitioner leaving open all the contentions. Hence, the following:

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ORDER

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a. The petition stands disposed of reserving liberty to the petitioner to file, along with a certified copy of this order, detailed objections to the impugned Show Cause Notice dated 27.09.2018 [ Annexure-N ] calling upon the fifth respondent to consider the same to justify the demand for penalty.

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b. The petitioner is reserved with liberty to file a response as aforesaid within four

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10 -

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NC: 2024:KHC:42981 WP No. 1639 of 2019

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[4] weeks from the date of receipt of a

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certified copy of this order.

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SD/(B M SHYAM PRASAD) JUDGE

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Sri R Jagadish Naik v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri R Jagadish Naik v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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