Allowed

Sarojamma v. the Director

Karnataka HC13 Dec 2024WP/17138/2024

Case brief

AI extract

What is this about?

A petitioner sought enforcement of a municipal endorsement to remove allegedly unauthorised neighbouring construction. The court directed the municipal council to inspect the property and verify records and initiate proceedings under Section 187(9) of the Karnataka Municipalities Act if warranted.

What did the court decide?

Council directed to inspect property, verify records and initiate Section 187(9) proceedings within four weeks; petitioner given liberty to file certified copy within two weeks.

Sarojamma Vs the Director — Municipal and Town Planning | Karnataka HC (2024)

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NC: 2024:KHC:51552 WP No. 17138 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF DECEMBER, 2024 BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 17138 OF 2024 (LB-RES)

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BETWEEN:

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SAROJAMMA D/O LATE CHIKKA ELLEGOWDA, AGED ABOUT 80 YEARS, RESIDING AT NO. 632 BHARATHI LAYOUT, CHIKKAMALURU CHANNAPATNA TOWN RAMANAGARA DISTRICT - 562 159.

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…PETITIONER

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(BY SRI. SHRIDHAR PRABHU.,ADVOCATE)

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AND:

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THE DIRECTOR

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Digitally signed by VANAMALA N Location: HIGH COURT OF KARNATAKA

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DIRECTORATE OF MUNICIPAL ADMINISTRATION, PODIUM BLOCK, OLD K G ID BUILDING, BENGALURU- 560 001.

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THE CITY MUNICIPAL COUNCIL CHANNAPATNA, RAMANAGARAM DISTRICT 562 160. BY ITS COMMISSIONER.

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C CHUDAIAH

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S/O PUTTASWAMYGOWDA, MAJOR, RESIDING AT NO. 533/1,

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NC: 2024:KHC:51552 WP No. 17138 of 2024

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B M ROAD, CHANNAPATNA 562160. DISTRICT RAMANAGARAM.

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STATE OF KARNATAKA URBAN DEVELOPMENT DEPARTMENT, VIKASA SOUDHA, BENGALURU 560001 BY ITS PRINCIPAL SECRETARY.

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DEPUTY COMMISSIONER RAMANAGARAM DIST. D.C. OFFICE, RAMANAGARAM 562160.

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…RESPONDENTS

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(BY SMT.CHANDINI S., HCGP FOR R1, R4 AND R5; SRI. A.V. GANGADHARAPPA, ADVOCATE FOR R2; SRI. SRINIVASA D.C., ADVOCATE FOR R3)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO (I) DIRECTING THE RESPONDENTS TO PROCEED FURTHER PURSUANT TO ENDORSEMENT DATED 17.7.2023 ISSUED BY THE COMMISSIONER, TOWN MUNICIPALITY, CHANNAPATNA A COPY OF WHICH IS PRODUCED AT ANNEXURE-A, AND CONSEQUENTLY REMOVE THE ENCROACHMENT AS NOTED THEREIN AND HANDOVER THE SAME TO THE PETITIONER EXPEDITIOUSLY WITHIN THE TIME TO BE STIPULATED BY THIS HONBLE COURT IN THE ENDS OF JUSTICE.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2024:KHC:51552 WP No. 17138 of 2024

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CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD

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ORAL ORDER

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The petitioner has filed this petition for directions essentially to the second respondent to act in terms of the Endorsement dated 17.07.2023 [Annexure-A] issued to the third respondent. The second respondent has stated that the third respondent is putting up construction without Building Licence and that if he does not remove the offending construction, proceedings under Section 187 of the Karnataka Municipalities Act, 1964 [for short, 'Municipalities Act' ] will be initiated. A copy of this Endorsement is also addressed to the petitioner. The petitioner, in support of the prayer, relies on another Endorsement dated 25.01.2024 [Annexure-J] issued by the second respondent stating that there is no information with his office about the third respondent being issued with any Building Plan or Licence.

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NC: 2024:KHC:51552 WP No. 17138 of 2024

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Sri Shridhar Prabhu, the learned counsel for the petitioner, relying upon these circumstances and the provisions of Section 187[9] of the Municipalities Act, submits that the second respondent, who even in the statement of objections has acknowledged that the third respondent has not been issued with any Plan cannot avoid acting under Section 187 of the Municipalities Act.

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This Court has extended an opportunity to Sri A V Gangadharappa, the learned counsel for the second respondent, to place on record the details of the sanction plan issued if any in favour of the third respondent. It is now stated on behalf of the learned counsel that the second respondent can only reiterate the terms of the Endorsement dated 25.01.2024 and the averments in the Statement of Objections in this regard. Sri Srinivasa D C, the learned counsel for the third respondent, submits that this Court may defer issuing directions because the third respondent has

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NC: 2024:KHC:51552 WP No. 17138 of 2024

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impugned the Endorsement dated 25.01.2024 in an appeal filed under Section 343 of the Municipalities Act before the competent authority.

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On the question of the third respondent's appeal as against the Endorsement dated 25.01.2024, this Court must observe that the appeal under Section 343 of the Municipalities Act will only be against orders specified therein. The Endorsement dated 25.01.2024, which is addressed to the petitioner on an application by her, may not be an order as is contemplated under Section 343 of the Municipalities Act but that is left open to be considered in the appeal. However, for the present purposes, this Court is persuaded to opine that the purported appeal as against this Endorsement dated 25.01.2024 need not be a reason for the second respondent to put off action that could be initiated in law if there are no interim orders in the appeal filed

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NC: 2024:KHC:51552 WP No. 17138 of 2024

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or if indeed the third respondent has put up construction without a sanction plan.

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On the second respondent's jurisdiction to initiate action if there is construction without sanction plan, this Court is of the view that the provisions of Section 187[9] of the Municipalities Act are conclusive if it is ascertained [ as it appears to be in this case that in terms of Annexure-A ] that the construction has been commenced without permission from the Municipal Council concerned. In terms of these provisions, the Municipal Commissioner or Chief Officer, upon being satisfied about the same, must first issue a Provisional Order with due opportunity and then issue Confirmation Order if good cause is not shown against the satisfaction that is recorded in the Provisional Order.

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Sri Srinivasa D C proposes to contend that the third respondent has put up construction much before the property came within the limits of

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NC: 2024:KHC:51552 WP No. 17138 of 2024

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the second respondent but that is a ground that would be available if the proceedings are initiated under Section 187[9] of the Municipalities Act but that cannot be a reason for the second respondent not to initiate the proceedings at all especially with its own categorical reiterated assertion that the third respondent has not been issued with the Plan or Licence. In the light of the afore, the following:

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ORDER

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[a] The petition is allowed, directing the second respondent within four [4] weeks

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from the date of receipt of a certified copy of this order to ensure that the third respondent's property is inspected and the records are verified to initiate proceedings, if warranted, under Section 187[9] of the Municipalities Act.

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[b] The petitioner is reserved with liberty to file a certified copy of this order, within two [2] weeks from the date of receipt

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NC: 2024:KHC:51552 WP No. 17138 of 2024

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thereof, with the second respondent. It is needless to observe that the third respondent's defences, if any, and if there is initiation of the proceedings as aforesaid, is not foreclosed by this order.

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Sd/(B M SHYAM PRASAD) JUDGE

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AN/-

Sarojamma v. the Director

Case brief

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Sarojamma v. the Director

Case brief

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