Mr. Oswald Dsilva Vs the Commissioner

THIS W.P. FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 29.11.2017 PASSED BY THE 3RD ADDL. DISTRICT JUDGE, DAKSHINA KANNADA, MANGALORE IN MA NO.75/2012 A COPY OF WHICH IS AT ANNEXURE-A AND ETC.

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

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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NC: 2025:KHC:25080 WP No. 3418 of 2018

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HC-KAR

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ORAL ORDER

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Petitioner is assailing the order of the appellate authority passed in Misc.Appeal No.75/2012. The appellate authority has confirmed the order passed by the respondent/Corporation under Section 321(3) of the Karnataka Municipal Corporation Act, 1976. These two concurrent orders are under challenge.

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Be that as it may, a memo dated 09.07.2025

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has been filed on behalf of the petitioner, accompanied by a detailed sketch prepared pursuant to site measurements. Upon careful examination of the said sketch, it is evident that an extent of 2.20 cents of land forming part of the petitioner’s property has been allegedly appropriated and put to use by the Corporation for the purpose of forming a public road. This portion is distinctly demarcated as part ‘4’ (P4) in the sketch. Additionally, the sketch further discloses that an extent measuring 3.39 cents has been voluntarily surrendered by

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HC-KAR

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the petitioner to facilitate access and use by a notified Government Temple situated adjacent to the property in question. These significant facts, especially the alleged appropriation of land for road formation without initiating any acquisition proceedings under the relevant law, go to the root of the matter and warrant serious consideration. The petitioner has placed reliance on this sketch and associated documents to contend that the demolition order ought not to have been confirmed in mechanical exercise of powers under Section 321 of the Act, particularly when a portion of the petitioner’s land is itself being used by the respondent-Corporation without authority of law.

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If the petitioner is able to substantiate the allegation that the Corporation has, in fact, utilized a portion of his property for the formation of a public road without initiating any acquisition proceedings or issuing a notice under the Land Acquisition Act or the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, such a circumstance

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HC-KAR

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would constitute a significant mitigating factor. The petitioner must be afforded an opportunity to establish this factual matrix in a fresh enquiry. Although it is open to the petitioner to seek Transferable Development Rights (TDR) for the land so utilized, in the peculiar facts and circumstances of the present case wherein the petitioner claims to have given up a portion of land not only for a public road but also for religious/public use by a Government-notified Temple a more holistic and lenient approach is warranted.

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4. Accordingly, instead of relegating the petitioner

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to independently pursue compensation or TDR, it would be just and appropriate to direct the respondent-Corporation to conduct a fresh and comprehensive enquiry. The enquiry shall ascertain (i) whether a portion of the petitioner’s land has indeed been utilized without recourse to acquisition proceedings, and (ii) whether the existing deviation alleged against the petitioner is compoundable in light of the amended Zonal Regulations dated 26.10.2011,

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NC: 2025:KHC:25080 WP No. 3418 of 2018

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HC-KAR

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particularly keeping in view the minimal nature of deviation and the equitable conduct of the petitioner. In this background, the concurrent orders confirming demolition are unsustainable and are liable to be set aside, with a direction to the respondent to reconsider the matter afresh in accordance with law and in light of the above observations.

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For the foregoing reasons, this Court proceeds to pass the following:

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ORDER

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(i) Writ petition is allowed ;

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(ii) The impugned order dated 29.11.2017 passed by the III Additional District Judge, Dakshina Kannada, Mangalore in Misc.Appeal No.75/2012 as per Annexure-A confirming the order dated 31.08.2012 passed by the respondent/Corporation as per Annexure-B is quashed and set aside;

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(iii) The matter stands remitted back to the respondent/Corporation;

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HC-KAR

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(iv) Respondent No.2 is directed to conduct a detailed enquiry within a period of four weeks from the date of receipt of a certified copy of this order. The enquiry shall specifically ascertain the following:

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a) Whether any portion of the petitioner’s land has been utilized by the authorities without initiating or completing acquisition proceedings in accordance with law;

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b) Whether the deviation alleged against the petitioner in respect of the construction on the subject property is compoundable, particularly in light of the amended Zonal Regulations dated 26.10.2011.

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(v) The respondent shall afford due opportunity to the petitioner to participate in the enquiry and to submit all relevant documents in support of his claim;

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(vi) Upon conclusion of the enquiry, appropriate action shall be initiated in accordance with law and the findings shall be duly communicated to the petitioner;

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