Shri Yallappa S/O Laxman Jadhav Vs the Commissioner

SHRI. YALLAPPA S/O LAXMAN JADHAV, AGE. 72 YEARS, OCC. RETIRED PRIVATE EMPLOYEE, R/O. SITE NO.50, SY. NO.50, JADHAV GALLI, SHAHU NAGAR, BELAGAVI-590010.

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…APPELLANT

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(BY SRI MADANGOUDA N.PATIL, ADVOCATE)

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AND:

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: HIGH COURT OF KARNATAKA

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THE COMMISSIONER, BELAGAVI CITY CORPORATION, BELAGAVI, CTS NO.4821/27A, R S NO.1005, NEAR SP OFFICE, SUBHASH NAGAR, BELAGAVI, KARNATAKA-590016.

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THE ASSISTANT EXECUTIVE ENGINEER, NORTH RANGE-I, BELAGAVI CITY CORPORATION, BELAGAVI, CTS NO.4821/27A, R S NO.1005, NEAR S.P. OFFICE, SUBHASH NAGAR, BELAGAVI-590016.

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…RESPONDENTS

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(BY SRI ARAVIND D.KULKARNI, ADVOCATE FOR R1 AND R2)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER DATED 06.08.2024 IN ALLOWING THE PETITION OF W.P.NO.103496/2023 PASSED BY THE LEARNED SINGLE JUDGE OF THIS COURT, IN THE ENDS OF JUSTICE AND EQUITY.

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NC: 2025:KHC-D:8014-DB WA No. 100353 of 2024

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HC-KAR

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THIS WRIT APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE R.DEVDAS AND

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THE HON'BLE MR. JUSTICE K V ARAVIND

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE R.DEVDAS)

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In view of submissions of learned counsel for the appellant, office objections are overruled.

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This intra-Court writ appeal has been filed by the original writ petitioner, being aggrieved by the impugned order passed by the learned Single Judge in W.P.No.103496/2023.

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The petitioner filed the writ petition being aggrieved of order dated 25.05.2023 at Annexure-U passed by the 1^st respondent – Commissioner, Belagavi City Corporation. The impugned order was passed by the Commissioner invoking Section 288D of the Karnataka Municipal Corporations Act, 1976 (‘Act’, for short). It was contended by the petitioner that he being the owner of the immovable property, having acquired the same under a Registered Gift Deed dated 13.06.2018, he filed an application before the Assistant Executive Engineer, North Division on 28.08.2018 requesting grant of permission to

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HC-KAR

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put up a building. It is contended that since no orders were passed by the Assistant Executive Engineer, the plan is deemed to have been sanctioned. Therefore, the petitioner proceeded to put up the construction. However, the respondent – authorities started pestering the petitioner that a portion of the building is occupying the footpath and public street and therefore the petitioner filed O.S.No.1248/2019 on the file of the learned III Additional Civil Judge and J.M.F.C., Belagavi seeking declaration and injunction against the Commissioner, Belagavi City Corporation. It is stated that initially an ad-interim order of temporary injunction was granted and thereafter the same was vacated/rejected. The petitioner filed Misc.Appeal No.5/2020 before the learned Principal Senior Civil Judge and C.J.M., Belagavi and the appeal came to be allowed granting temporary injunction restraining the respondents from demolishing the structure. There was also a direction issued to the respondents that if at all they contemplate any action, it should be only after following due process of law viz., the provisions of the Act. Following the said directions, the respondents issued a notice dated 30.07.2022 to the petitioner and the tenants occupying the premises. The petitioner and the tenants approached this

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HC-KAR

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Court in W.P.No.102921/2022. The writ petition was disposed

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of directing that the notice shall be treated as a show-cause notice and the petitioner was permitted to show cause as to why the respondents should not proceed for demolition. Accordingly, the petitioner filed objections and the 1^st respondent, without considering the objections passed the impugned order dated 25.05.2023 at Annexure-U directing demolition of the entire building.

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Learned counsel for the appellant submits that although it was brought to the notice of the learned Single Judge that the respondents could not have invoked Section 288D of the Act, since the said provision is meant to remove any obstruction caused on a public street and not for demolition

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of a building which is put up on a property claimed by the petitioner, however the learned Single Judge has proceeded to accept the submissions made on behalf of the respondents that prima facie there appears to be no title to the property in question with the petitioner, since an unregistered gift deed is produced which does not convey any title. At this juncture, learned counsel for the appellant has drawn the attention of

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HC-KAR

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this Court to Annexure-L which is the registered gift deed dated 13.06.2018 which was registered in the Office of the SubRegistrar, Belagavi on 13.06.2018. Learned counsel would further submit that a plain reading of Section 288D of the Act makes it very clear that the provision is meant to empower the Commissioner to remove any obstruction caused on a public street, since no person is entitled to cause an obstruction on a public street and such obstructions can be removed by the Commissioner even without issuing notice to the person who has caused the obstruction. On the other hand, the respondents could have invoked Section 321 of the Act which is meant to take action against unauthorized constructions and violation of the provisions of the Act, Rules or the Building Byelaws.

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Per contra , learned counsel for the respondents – Corporation would seek to justify the impugned order passed by the learned Single Judge and the order passed by the Commissioner at Annexure-U. Learned counsel has drawn the

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attention of this Court to the memorandum of writ petition while pointing out that it is claimed by the petitioner that his

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HC-KAR

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son Sri Sachin Yallappa Jadhav acquired the property in question under a sale deed, from the erstwhile owner Smt.Lalita Prabhavati w/o Basavaraj Desai. However, no mention is made about the sale deed or the registration of such a document and no copy of the same is produced along with the writ petition, or along with the memorandum of appeal. The learned counsel would therefore submit that the title of the petitioner to the property in question is disputed. It is submitted that although the petitioner has claimed that he has been paying property tax in respect of the property in question to the Corporation, the said statement may be incorrect, since the petitioner has no title to the property in question. Learned counsel would further submit that the Commissioner is empowered to take action against the illegal structure put up by the petitioner on a public street and therefore invocation of Section 288D cannot be held to be illegal. Learned counsel submits that the Commissioner may either proceed under Section 321 or Section 288D and there is no restriction on the Commissioner.

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HC-KAR

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Having heard the learned counsel for the appellant,

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learned counsel for the respondents – Corporation and having perused the appeal memo, we find that the issue that is required to be decided is whether the action initiated by the Commissioner under Section 288D of the Act can be sustained, in the facts and circumstances of this case. We find from the impugned order at Annexure-U that after the previous writ petition in W.P.No.102921/2022 was disposed of by the learned Single Judge directing the petitioner to treat the earlier order as a show-cause notice while permitting the petitioner to file objections or show cause and thereafter the respondents were directed to proceed in accordance with law, objections have been filed at the hands of the appellant herein through a learned counsel. The impugned order at Annexure-U has proceeded on a basis that the road abutting the property in question is 80 feet road in terms of the master plan. However, it is the contention of the appellant that the road in question measures 60 feet and not 80 feet. In our opinion, the issue has to be looked into from the point of view that the allegation sought to be made by the Commissioner on the petitioner.

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HC-KAR

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6. Admittedly, the petitioner has put up a residential

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building over the property in question in the year 2018. The question as to whether the said construction is legitimate or illegal is not the issue that can be gone into for the present. However, if the appellant has put up construction in the year 2018, the Commissioner could not have invoked Section 288D of the Act to remove any deviated portion of the building. As rightly submitted by the learned counsel for the appellant, Section 288A which was inserted with effect from 17.06.1986 prohibits any person from erecting or setting up any wall, fence, rail, post, step, booth or other structures or fixtures in or upon any public street or upon or over any open channel, well or tank in any street so as to form an obstruction to, or an encroachment upon or a projection over, or to occupy any portion of such street, channel, drain, well or tank. Having regard to the public nuisance that can be caused by such an action which causes any obstruction on a public street, channel, drain, well or tank which is used by the general public, special powers are conferred on the Commissioner under Section 288D to remove such encroachment without issuing notice. Surely, having regard to the preamble portion of the impugned order at

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HC-KAR

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Annexure-U, it is clear that the construction of a building has been made by the petitioner in the year 2018 and the allegation of the Commissioner is that such a construction has been made without obtaining plan.

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On the other hand, a plain reading of the provisions contained in Section 321 of the Act confers power on the Commissioner that if he is satisfied that the construction or reconstruction of any building or hut or well has been commenced without obtaining his permission or is being carried on or has been completed otherwise then in accordance with the plans or particulars on which such permission or order was based, he may make a provisional order requiring the owner of the building to demolish the work done or so much of it as in the opinion of the Commissioner, has been unlawfully executed or make such alterations as may in the opinion of the Commissioner, be necessary to bring the work into conformity with the Act, Rules, byelaws, directions or requisitions. It is therefore clear that it is this provision under Section 321 which should have been invoked by the Commissioner and not Section 288D.

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HC-KAR

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We have also gone through the material available

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on record and we find that the appellant is contending that he gave an application to the Assistant Executive Engineer of the respondent – Corporation on 28.08.2018. However on a plain reading of the application, it is clear that the appellant did not furnish a proposed plan for consideration of the competent authority, for granting permission to put up the building. The claim of the appellant regarding a deemed plan to have been sanctioned in terms of Section 301(2) is also kept open for consideration of the Commissioner. At any rate, we are of the considered opinion that having regard to the facts and circumstances of the case and the averments made in the impugned order at Annexure-U, the Commissioner could not have invoke Section 288D for proceeding against the construction made by the appellant herein. On the other hand, the Commissioner should have proceeded under Section 321 of the Act.

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Consequently, we proceed to pass the following:

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ORDER

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i. The writ appeal is allowed. The impugned order dated 06.08.2024 passed by the learned

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HC-KAR

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Single Judge in W.P.No.103496/2023 is set aside.

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ii. The impugned order passed by the 1^st respondent – Commissioner, at Annexure-U dated 25.05.2023 is also quashed and set aside.

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iii. However, liberty is reserved to the 1^st respondent – Commissioner to proceed under Section 321 of the Karnataka Municipal Corporations Act, 1976 against the appellant. Ordered accordingly.

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Sd/(R.DEVDAS) JUDGE

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Sd/(K V ARAVIND) JUDGE

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CLK CT: UMD List No.: 1 Sl No.: 2

Shri Yallappa S/O Laxman Jadhav v. the Commissioner

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Shri Yallappa S/O Laxman Jadhav v. the Commissioner

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