Sri B Sami Ulla Khan Vs the Commissioner — Writ and Judicial Review | Karnataka HC (2025)

Sri B Sami Ulla Khan Vs the Commissioner — Writ and Judicial Review | Karnataka HC (2025)

What the court decided

AI extract

Outcome

Petitioner permitted to file a reply to the provisional order; respondent No.1 directed not to take any action to remove the construction but to pass an order under Section 321(3) followed by an order under Section 462; petitioner at liberty to appeal under Section 443-A if a Section 321(3) order is passed; pending I.As. disposed of.

Issue for consideration

Whether the writ petition challenging a provisional order under Section 321(2) of the Act, 1976 is premature before a confirmation order is passed under Section 321(3). +1 more

Court's answer

The writ petition against the provisional order under Section 321(2) is premature.

Ratio / Principle

An order under Section 321(2) of the Act, 1976 is always provisional: it indicates the extent of deviation and gives the owner an option to remove unauthorised construction which violates the sanctioned plan.

Key takeaways

If the owner fails to remove the construction, the Municipal Corporation must take action by passing an order under Section 321(3) confirming the provisional order, and thereafter pass an order under Section 462 of the Act, 1976.ratio¶54
The petitioner is at liberty to file a reply to the provisional order and, if an order under Section 321(3) is passed, to file an appeal under Section 443-A of the Act, 1976.ratio¶59

Detailed headnote1 paragraphs

Writ petition under Articles 226 and 227 of the Constitution challenging a provisional order ('tatkalika aagne') dated 09.10.2025 issued by the Commissioner, Mysuru Mahanagara Palike under Section 321(2) of the Karnataka Municipal Corporations Act, 1976, directing removal of allegedly unauthorised construction within seven days on pain of confirmation under Section 321(3). Held: an order under Section 321(2) is always provisional, indicating the extent of deviation and giving the owner an option to remove the construction violating the sanctioned plan; confirmation can occur only under Section 321(3), to be followed by an order under Section 462; hence a writ petition against the provisional order is premature. Petition dismissed with liberty to the petitioner to file a reply and, upon a Section 321(3) order, to appeal under Section 443-A; respondent No.1 directed not to demolish until the Section 321(3) and Section 462 orders are passed. Pending I.As. disposed of. (R. Nataraj, J.)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17^TH DAY OF DECEMBER, 2025

BEFORE

THE HON'BLE MR. JUSTICE R. NATARAJ WRIT PETITION NO. 32786 OF 2025 (LB-RES)

BETWEEN:

SRI. B. SAMI ULLA KHAN S/O LATE B.P BASHEER AHMED KHAN, AGED ABOUT 83 YEARS, RESIDING AT NO.750, BANNI MANTAP B LAYOUT, SS NAGAR, MYSORE-570015

…PETITIONER

(BY SRI. VIVEK SUBBA REDDY, SENIOR ADVOCATE ALONGWITH SRI. CHAND PASHA, ADVOCATE)

AND:

Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

THE COMMISSIONER MYSURU MAHANAGARA PALIKE (MCC), ZONE OFFICE-7, LASHKAR MOHALLA, MYSURU MUNICIPAL CORPORATION, MYSURU-570001

MYSURU URBAN DEVELOPMENT AUTHORITY (MUDA) LAXMIBHAI ROAD, LAKSHMIPURAM, MYSURU-570005 REPRESENTED BY ITS COMMISSIONER

THE ASSISTANT COMMISSIONER, ZONE OFFICE-7, LASHKAR MOHALLA, MYSURU MUNICIPAL CORPORATION, MYSURU-570001

SRI. SUBHAN KHAN, S/O LATE MASOOM KHAN, AGED ABOUT 70 YEARS, RESIDING AT NO.104, 2^ND CROSS,

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BANNIMANTAP 'C' LAYOUT MYSURU-570015

…RESPONDENTS

(BY SMT. M.P.GEETHA DEVI, ADVOCATE FOR RESPONDENT NO.1; SRI. G.B.SHARATH GOWDA, ADVOCATE FOR RESPONDENT NO.2; SRI. B. BOPANNA, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NO.3;

SRI. PRAVEEN M.T., ADVOCATE FOR RESPONDENT NO.4)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE PROVISIONAL ORDER/TATKALIKA AAGNE DATED 09.10.2025 BEARING NO. MY.NA. PAA/VA.AA.07/S.A/90/25-26 PASSED BY THE RESPONDENT NO.1 UNDER SECTION 321(2) OF KMC ACT IS HEREWITH PRODUCED AS ANNEXURE-A.

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE R. NATARAJ

ORAL ORDER

The petitioner has challenged an order bearing No.ªÉÄÊ£À.¥Á/ªÀ.D.07/¸À.C./90/25-26 dated 09.10.2025 passed by the

respondent No.1 under Section 321(2) of the Karnataka Municipal Corporations Act, 1976 (henceforth referred to as 'Act, 1976').

(i) The petitioner contends that he is the owner

of the property bearing Site No.2 of Bannimantap 'C' Extension,

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Mandi Mohalla, Mysuru. He claims that he was running an English Nursery and Higher Primary School in the aforesaid property and after demolishing the building, he started putting up construction in the above property after obtaining a plan and licence from the respondent No.1. The respondent No.4 is the owner of the property bearing Site No.104 of Bannimantap Extension, Mandi Mohalla, Mysuru, which is adjacent to the property of the petitioner. It is contended that the respondent No.4 offered to purchase the property of the petitioner and when the petitioner refused, he threatened him that he would make him run from pillar to post. The respondent No.4 also filed O.S.No.1214/2024 to restrain the petitioner from putting up construction in the above property and he alleged therein that the petitioner had encroached 8 feet into his property. The petitioner claimed that the Trial Court rejected the application filed by the respondent No.4 under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908. The respondent No.4 then filed an application for amendment of the suit, which was opposed by the petitioner and thereafter, respondent No.4 filed an application to withdraw the suit.

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(ii) The petitioner claims that he had constructed the building in accordance with law. However, the respondent No.4 and his associates were harassing him. The petitioner claims that respondent No.4 filed W.P.No.12976/2025. The said writ petition was disposed off directing the respondent Nos.1 to 3 to take necessary action in accordance with law after verifying the plan and construction in the site. The petitioner contends that the respondent No.1 without issuing show-cause notice has passed the impugned order under Section 321(2) of the Act, 1976 and has directed the petitioner to remove the illegal construction within seven days, failing which, the confirmation order would be passed under Section 321(3) of the Act, 1976. The petitioner is therefore, before this Court challenging the aforesaid order.

The learned Senior counsel for the petitioner submitted that the provisional order passed under Section 321(2) of the Act, 1976 indicates that the respondent No.1 is determined to remove the construction without passing an order under Section 321(3) of the Act, 1976. He therefore, submits that the said order attempts to overreach the process of law and hence, prays that the said order be set aside.

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Per contra, the learned counsel for respondent No.4 submits that the impugned order is only a provisional order and that the same would be confirmed only, if the petitioner fails to remove the construction which is in violation of the sanctioned plan. He therefore, submits that the writ petition is premature and no cause of action has arisen to the petitioner to approach this Court. He submits that if an order under Section 323(3) of the Act, 1976 is passed then, there is a provision of an appeal under Section 443-A of the Act, 1976.

Learned counsel for respondent No.1 reiterated the

submission of the learned counsel for respondent No.4.

I have considered the submissions of the learned Senior counsel for the petitioner as well as the learned counsel for respondent No.1 and the learned counsel for respondent No.4.

A perusal of the order impugned in this writ petition shows that it is one passed under Section 321(2) of the Act, 1976. For the sake of immediate reference, Section 321(2) of the Act is extracted below:

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" 321. Demolition or alteration of buildings or well work unlawfully commenced, carried on or completed.-

(1) xxxxx

(2) The Commissioner shall serve a copy of the provisional order made under sub-section (1) on the owner or builder of the building or hut or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed."

A perusal of the above shows that the order under

Section 321(2) of the Act, 1976 is always provisional which indicates the extent of deviation and gives an option to the owner to remove unauthorized construction, which is in violation of the sanctioned plan. If the owner fails to remove the construction then, it is for the Municipal Corporation to take necessary action by passing an order under Section 321(3) of the Act, 1976 confirming the provisional order and thereafter, pass an order under Section 462 of the Act, 1976. Therefore, as rightly contended by the learned counsel for the respondent No.1 and 4, the writ petition is premature.

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Hence, this writ petition is dismissed . However, it

is open for the petitioner to file a reply to the provisional order passed by respondent No.1. The respondent No.1 is directed not to take any action to remove the construction put up by the petitioner but shall proceed to pass an order under Section 321(3) of the Act, 1976 and thereafter follow it up by an order under Section 462 of the Act, 1976. If an order under Section 321(3) of the Act, 1976 is passed, the petitioner is at liberty to file an appeal under Section 443-A of the Act, 1976.

In view of dismissal of the petition, pending I.As., if any, do not survive for consideration and the same stand disposed off.

Sd/(R. NATARAJ) JUDGE

PMR

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