Allowed

Sri. Somaraju v. the Commissioner of City Municipal Council

Karnataka HC21 Nov 2024WP/16692/2024

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed the respondent's rejection of the petitioner's building plan application without assigned reasons. The court held the 2017 circular is not retrospective for a 1957 structure and directed the respondent to approve the plan within 30 days or grant deemed approval.

What did the court decide?

The endorsement rejecting the building plan application is quashed. The respondent is directed to consider the drawings and approve or refuse within 30 days or grant deemed approval.

Sri. Somaraju Vs the Commissioner of City… — Pension and Retirement Benefits | Karnataka HC (2024)

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NC: 2024:KHC:47274 WP No. 16692 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF NOVEMBER, 2024 BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 16692 OF 2024 (LB-RES)

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BETWEEN:

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SRI. SOMARAJU S/O LATE KEMPAIAH AGED ABOUT 67 YEARS RESIDING AT NO.41/E 14^TH MAIN ROAD, VIJAYANAGARA BENGALURU-560040 PRESENTLY RESIDING AT NO. 185, 5^TH MAIN ROAD, JUDICIAL LAYOUT, 2^ND STAGE, TALAGHATTAPURA, BENGALURU-560109.

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…PETITIONER

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(BY SRI. INDU SHEKAR B T., ADVOCATE)

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Digitally signed by VANAMALA N Location: HIGH COURT OF KARNATAKA

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AND:

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THE COMMISSIONER OF CITY MUNICIPAL COUNCIL RAMANGARAM RAMANAGARAM DISTRICT, 562159.

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THE RAMANAGARAM URBAN DEVELOPMENT AUTHORITY B.M ROAD, RAMANAGARAM, RAMANAGARAM DISTRICT, PIN-562159.

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NC: 2024:KHC:47274 WP No. 16692 of 2024

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THE STATE OF KARNATAKA, REPRESENTED BY THE COMMISSIONER, URBAN DEVELOPMENT VIDHANA SOUDHA, VIDHANA VEEDHI, BANGALORE-560 001.

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…RESPONDENTS

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(BY SRI.MAHENDRA G., ADVOCATE FOR R2; SMT. SPOORTHI V., HCGP FOR R3; R1 SERVED)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO A) CALL FOR THE RECORDS FROM THE RESPONDENTS NO.1 AND 2 IN RESPECT OF PROPERTY BEARING KHANESHUMARI NO.119/38 SITUATED AT IJOOR VILLAGE, KASABA HOBLI, RAMANAGARAM TALUK, RAMANAGARAM ALONG WITH THE CORRESPONDENCES RELATED TO ANNEXURE-A. B) ISSUE A WRIT OF CERTIORARI QUASHING THE ENDORSEMENT AT ANNEXURE-A; C) DIRECTING THE RESPONDENTS NO.1 AND 2 TO ISSUE LICENSE AND PLAN IN RESPECT OF SITE BEARING KHANESHUMARI NO.119/38 SITUATED AT IJOOR VILLAGE, KASABA HOBLI, RAMANAGARAM TALUK, RAMANAGARAM WHICH IS THE SCHEDULE PROPERTY OR IN THE ALTERNATIVE TO ISSUE THE LICENSE BY THIS HONBLE COURT BY QUASHING THE ENDORSEMENT AT ANNEXURE-A.

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NC: 2024:KHC:47274 WP No. 16692 of 2024

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

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ORAL ORDER

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The petitioner, who asserts ownership of the property in PID No. 28-2-520-8 in Ramanagara City Municipal Council, Ward No.28, Ijoor Extension, Ramanagara Town [ the subject property ], has called in question the Endorsement dated 27.02.2024 [Annexure-A]¹ issued on his request for permission to build. This Endorsement reads that the petitioner's application for Building Plan and Licence is rejected, but no reason for the same is assigned.

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The petitioner contends that [i] his father, Sri M Kempaiah, an Advocate at Ramanagaram, has purchased the subject property on 17.02.1955 when it was assigned Khaneshumari No.119/38 by the Ijoor Panchayat [the erstwhile local Authority]; [ii] that his

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1 The Endorsement is part of the details as found in the print out from "Land and Building Plan Approval System"

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NC: 2024:KHC:47274 WP No. 16692 of 2024

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father constructed a residential building way back in the year 1957; that the revenue entries for the subject property are changed in his name even during his father's lifetime; [iii] that his father has died in the year 2009; [iv] that Ijoor Grama Panchayat is merged with Ramanagaram Town Municipal Council; and [v] that the petitioner, who is given the advantage of e-Katha [ as per Annexure-F] for the subject property, has paid up-to-date taxes.

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The petitioner, as regards the immediate cause for the petition and his grievance with the impugned Endorsement [Annexure-A], contends as follows. He has sought for permission to demolish the existing structure in the subject property and start new construction because the existing structure is old. The first respondent, vide Permission dated 16.05.2023 [Annexure-G], has permitted him to demolish the old construction and that he has accordingly demolished the construction. The

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NC: 2024:KHC:47274 WP No. 16692 of 2024

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Permission dated 16.05.2023 is granted under Section 213 of the Karnataka Municipalities Act, 1964 [for short 'Municipalities Act' ]. He has submitted a Building plan for approval but is issued with the impugned Endorsement without assigning reason.

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When queried, Sri Indu Shekar B T, the learned counsel for the petitioner, submits that the petitioner has submitted all the drawings On-line as is required. The first respondent has remained absent though served. The second respondent [the Ramanagaram Urban Development Authority] has filed its Statement of Objections. The second respondent has contended that it has opined against granting permission to the petitioner to put up construction because of the Government Circular dated 04.05.2017, which stipulates, amongst others, that unless the properties are converted from agricultural to non-agricultural purposes prior to a

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NC: 2024:KHC:47274 WP No. 16692 of 2024

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particular date, cannot be given permission to construct.

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This Court, at the first instance must observe that in a series of matters, has opined that the terms of the Circular dated 04.05.2017 cannot be made applicable retrospectively and immediate reference could be made to the decision in the writ petition in W.P. No.14253/2022 disposed of by this Court on 03.03.2023. This Court has opined accordingly in all cases where the construction is prior to the year 2017. The petitioner's specific case is that his father purchased the subject property in the year 1955 and he put up construction in the year 1957. These will be determinative factors, and the proposition that the Circular dated 04.05.2017 cannot be made applicable retrospectively must apply squarely. It is held accordingly.

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NC: 2024:KHC:47274 WP No. 16692 of 2024

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On the question of approval of the Building Plan, this Court must observe that the rejection is not because the Building Plan filed is contrary to the permissible parameters on setback, height and such other things. In which event, this Court must refer to Section 187[5] of the Municipalities Act. This provision reads as under:

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(5) A building proposed in a notice given under sub-section (1) may be proceeded with in such manner, as may have been specified in such notice, as is not inconsistent with any provision of this Act or any rule or bye-law for the time being in force thereunder, in the following cases, that is to say:— (a) in case the municipal council, within one month from the receipt of the notice given under sub-section (1), has neither,— (i) passed orders under subsection (3), and served notice thereof in respect of the intended work; nor (ii) issued under subsection (4), any provisional order or any demand for further particulars; (b) in case the municipal council having issued such demand for, and having received in accordance with the bye-laws in force in this behalf, such further particulars, has issued no further

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NC: 2024:KHC:47274 WP No. 16692 of 2024

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orders within one month from the receipt of such particulars."

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It is obvious from the afore provision that the petitioner, in uploading these details of the drawings, has given due notice of the proposed construction. In the peculiarities of this case, this Court must observe that the petitioner should be at liberty to file a certified copy of this Order with the first respondent, who remains unrepresented despite service of notice, and await completion of one month from such date. If there is no communication from the first respondent even after one month on due consideration of his application in the light of this Court's observation on the applicability of the Circular dated 04.05.2017, the petitioner must be entitled for Deemed Approval subject to the other provisions of Section 187 of the Municipalities Act. In the light of the afore, the following:

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NC: 2024:KHC:47274 WP No. 16692 of 2024

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ORDER

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[a] The petition is allowed, and the first respondent's Endorsement dated 27.02.2024 [Annexure-A] rejecting the petitioner's application for approval of the Building Plan is quashed.

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[b] The petitioner is reserved with liberty to file a certified copy of this Order with the first respondent within a week from the date of receipt of a certified copy of this Order.

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[c] The first respondent shall consider the drawings already submitted for due approval in the light of the applicable ByeLaws within thirty [30] days from the receipt of a certified copy of this Order.

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[d] If the first respondent does not either approve or refuse the approval within

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10 -

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NC: 2024:KHC:47274 WP No. 16692 of 2024

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thirty days from the date of receipt of a certified copy of this order, the petitioner shall be entitled to the benefit of Deemed approval under Section 187[5] of the Municipalities Act subject to compliance with the further provisions of this section.

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SD/(B M SHYAM PRASAD) JUDGE

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AN/-

Sri. Somaraju v. the Commissioner of City Municipal Council

Case brief

What is this about?

What did the court decide?

Sri. Somaraju v. the Commissioner of City Municipal Council

Case brief

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What did the court decide?

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