Mr. Monappa Gowda Vs the Commissioner

MR. MONAPPA GOWDA S/O THIMMAPPA GOWDA AGED MAJOR RESIDING AT SHRI NILAYA HOUSE PARASHURAM NAGARA PALANEERU ROAD, 3RD CROSS KAVOOR KATTE, MANGALURU-587701.

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…PETITIONER

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(BY SRI. VENKATESH SOMAREDDI, ADVOCATE)

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AND:

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Digitally signed by AL BHAGYA Location: HIGH COURT OF KARNATAKA

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THE COMMISSIONER CITY CORPORATION MANGALURU-587701.

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MRS. SUSHEELA SURESH BABU ADULT W/O SURESH BABU R/AT SANNIDHI DOOR NO. 2-10-56 PARASHURAM NAGARA PALANEERU ROAD

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HC-KAR

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KAVOOR KATTE MANGALURU-587701.

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…RESPONDENTS

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(BY SRI. MS. ANANYA RAI, ADVOCATE FOR SRI. HALEEMA AMEEN, ADVOCATE FOR R1; SRI. VISHWAJITH RAI .M, ADVOCATE FOR R2)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT R-1 TO REMOVE THE ILLEGAL AN UNAUTHORISED STRUCTURE PUT BY R-2 IN SY. NO. 149/1P62 AT KAVOOR, MANGALURU TALUK, WITHIN THE TIME TO BE FIXED BY THIS HON'BLE COURT AND SUBMIT COMPLIANCE TO THIS HON'BLE COURT AND ETC.

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IN WP NO. 28803/2023 BETWEEN:

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SMT. SUDHA AGED ABOUT 43 YEARS W/O PRAHALADH SUVARNA R/AT NO 2-10/60, DEEPAM PARASHURAMA NAGAR KAVOOR, MANGALORE D.K.-575015.

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SRI. NARAYANA PATAVARDHAN AGED ABOUT 58 YEARS S/O LATE V.H. PATAVARDHAN R/AT 2-10/3(1), SRI SUBHANU PALANEERU RAM NAGAR KAVOOR, MAGNALORE, D.K.-575015.

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SRI. CHANDRAHAS .M AGED ABOUT 56 YEARS S/O PADMA POOJARY R/AT 4-5/3, DHRUV SHABARI TRAVELS NEAR AYYAPPA TEMPLE MULLAKAD, KAVOOR MANGALORE, D.K.-575015.

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HC-KAR

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SRI. MONAPPA GOWDA AGED ABOUT 50 YEARS S/O THIMMAPPA GOWDA R/AT 2-10/21(1), SHRI NILAYA PARASHURAMA NAGARA KAVOOR, MANGALORE, D.K.-575015.

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...PETITIONERS

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(BY SRI. AJAY PRABHU .M, ADVOCATE)

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AND:

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THE COMMISSIONER THE MANGALORE CITY CORPORATION LALBAGH, M.G.ROAD MANGALORE-575001.

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THE COMMISSONER THE MANGALORE URBAN DEVELOPMENT AUTHORITY KULUR FERRY ROAD, URWA MANGALORE-575006.

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SMT. SUSHEELA W/O SURESH BABU AGED ABOUT 53 YEARS R/AT 2-10/56, SANNIDHI PARASHURAMA NAGAR KAVOOR, MANGALORE-575015.

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...RESPONDENTS

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(BY SRI. AJAY J. NANDALIKE, ADVOCATE FOR R1; MS. AHUNA RAI, ADVOCATE FOR SMT. HALEEMA AMEEN, ADVOCATE FOR R2; SRI. VISHWAJITH RAI, ADVOCATE FOR R3)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO RECALL THE ORDER DATED 31.08.2023 PASSED BY THIS HONBLE COURT IN WP NO. 3894/2023 (LB-RES) AS PER ANNEXURE-A AND ETC.

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HC-KAR

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THESE PETITIONS, COMING ON FOR DICTATING ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL ORDER

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In these two writ petitions the dispute is in regard to

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the width of the road earmarked as per MUDA Master Plan of the year 2021.

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Writ petition in W.P.No.47390/17 is filed alleging inaction on the part of respondent No.1/Corporation in not taking action against respondent No.2/Susheela Suresh Babu, who has undertaken construction by encroaching the designate 9.00 meter road.

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The fresh writ petition in W.P. 28803/2023 is

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filed questioning the order passed by the Co-Ordinate Bench in W.P.3894/2023 filed by respondent No.2 in the lead petition.

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HC-KAR

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The Co-Ordinate Bench while entertaining the

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writ petition filed by respondent No.2 in W.P.47390/2017

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has proceeded on an assumption that authorities are trying to widen the width of the road to an extent of 8.60

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meters without acquiring the land of respondent No.2. Petitioners' primary grievance is that respondent No.2 despite aware of pendency of writ petition in W.P.47390/2017 by suppressing the pendency has obtained an order at the hands of the Co-Ordinate Bench. Aggrieved by the order passed by the Co-Ordinate Bench the present writ petition in W.P.No.28803/2023 is filed questioning the order passed in W.P.No.3894/2023 dated 31.8.2023.

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Heard the learned counsel for the petitioners, learned counsel appearing for respondent No.2 and the counsel appearing for respondent No.1.

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Before this Court delves into the issue raised in

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these two cases, this Court deems it fit to extract the

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HC-KAR

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findings recorded at para 4 and operative portion of the order passed in W.P.3894/2023, which reads as under:

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"4. Thereafter Bharath Bhushan sold remaining portion in favour of the petitioner under a sale deed dated 14.09.2016 and katha has been transferred in favour of the petitioner. The petitioner applied for a building licence in the year 2017. Subsequently, there were certain dispute between the petitioner and said Bharath Bhushan, when Bharath Bhushan again filed an application for single layout plan which was objected to by the petitioner and as such, no plan sanction was granted in favour of Bharath Bhushan. However, the plan sanction in favour of the petitioner also has not been issued on account of respondents claiming that the general public are insisting for widening of the road and as such, had directed the petitioner to leave 8.60 mtrs for the purpose of road widening by execution of relinquishment deed and thereafter the request of petitioner for plan sanction and building licence would be considered.

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OPERATIVE PORTION

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ORDER

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i. The writ petition is allowed. A certiorari is issued. Order dated 27.12.2022 at Annexure-A passed by respondent No. 1 is quashed.

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ii. A mandamus is issued directing respondent No.2 to consider the application filed by the petitioner for building licence and Plan sanction within a period of 60 days of receipt of copy of this order without insisting on relinquishment. The plan can be issued on land otherwise than the land reserved for widening of the road, however with the FAR of such land being made available.

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HC-KAR

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iii. Liberty is reserved to respondents No.1 and 2 to exercise powers under Section 69 of the Karnataka Town and Country Planning Act, 1961."

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Upon a close reading of the extracted findings and directions issued by the Co-ordinate Bench in W.P. No. 3894/2023, it becomes evidently clear that respondent No.2 in W.P. No. 47390/2017 (who is arrayed as respondent No.3 in the present writ petition in W.P. No. 28803/2023) has deliberately suppressed the factum of pendency of W.P. No. 47390/2017. The said writ petition pertains to a dispute directly involving respondent No.2’s alleged encroachment over a designated 9.00 meter wide road. A perusal of the Revised Master Plan produced at Annexures–“D and E” respectively, clearly indicates that the road in question is a notified 9.00 meter wide road. However, respondent No.2, while filing W.P. No. 3894/2023, failed to disclose this material fact and misleadingly contended that respondent No.1–Corporation was attempting to widen the road to an extent of 8.60

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HC-KAR

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meters without initiating acquisition proceedings or

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following due process of law.

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By projecting this misleading narrative, respondent No.2 appears to have secured favourable directions from the Co-ordinate Bench, which, based on the submissions made by respondent No.2, proceeded to issue directions to respondent No.1 – Corporation to consider issuance of building licence and sanction of building plan without insisting on the execution of a relinquishment deed. The Co-ordinate Bench, while issuing these directions, further observed that the sanctioned plan could be granted in respect of land available excluding the area earmarked for road widening, by conferring FAR (Floor Area Ratio) only in respect of the balance area.

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Upon examining the findings recorded in the impugned order conjointly with the Revised Master Plan, this Court is of the considered opinion that the statutory plan unequivocally designate the road in question as being

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HC-KAR

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9.00 meters in width. Contrary to this statutory

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prescription, the narrative advanced by respondent No.2 that the road is sought to be widened to 8.60 meters is factually incorrect and misleading. It is thus evident that

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the width of the road has, in fact, been reduced from the notified 9.00 meters to 8.60 meters in practice, which is impermissible and contrary to the planning records. Therefore, the observation of the Co-ordinate Bench based solely on the assertions of respondent No.2 that the Corporation is attempting to widen the road to 8.60 meters without initiating acquisition proceedings, is based on an erroneous factual premise and is thus not sustainable in law.

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9. As a consequence, the building licence and

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sanctioned plan secured by respondent No.2 on the basis of such misleading assertions stand vitiated, being contrary to the planning records of the competent authority. The records reveal that respondent No.2 misrepresented before the Co-ordinate Bench that the

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HC-KAR

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Corporation had withheld the building licence solely due to public pressure for road widening and that she was being compelled to execute a relinquishment deed. Unfortunately, respondent No.1 – Corporation failed in its duty to bring to the notice of the Co-ordinate Bench the existence of a duly notified 9.00 meter wide road in the Revised Master Plan. The failure to disclose this critical fact resulted in the issuance of directions that are inconsistent with the statutory planning documents.

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Furthermore, this Court finds that the building plan approved by respondent No.1 does not accurately reflect the true width of the road. In the sanctioned plan, respondent No.2 has shown that a vacant portion exists towards the western side of her property, and that beyond this portion lies the North–South road. The markings in the plan give the impression that respondent No.2 has voluntarily left sufficient space towards the west of her property for road widening. However, this assertion is

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HC-KAR

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contradicted by the Revised Master Plan, which confirm

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that the road is required to be 9.00 meters in width.

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In fact, the plan submitted by respondent No.2 depicts the width of the road as only 8.60 meters. Hence, respondent No.1–Corporation is under a statutory obligation to ensure that the designated width of 9.00 meters which is now reduced to 8.60 meters is preserved in accordance with the planning norms. It is further brought on record that respondent No.1 – Corporation has acknowledged that the width of the road in question is maintained at 8.60 meters. This acknowledgment confirms the factual position on ground and serves as the basis for treating the road width as 8.60 meters for the purposes of the fresh spot inspection, enquiry, and any further action to be undertaken in accordance with this Court’s directions.

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In light of the above discussion, this Court is of the considered view that the building licence and

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sanctioned plan obtained by respondent No.2 pursuant to

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the order passed in W.P. No. 3894/2023 require reconsideration. The plan must be reassessed on the foundational premise that the width of the road is 8.60 meters, as notified under the Revised Master Plan. A fresh

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and comprehensive enquiry must be undertaken by the competent planning and municipal authorities to examine the legality of the construction already carried out or being undertaken by respondent No.2 – Smt. Susheela Suresh Babu. Such enquiry shall also take into account whether the sanctioned plan was obtained by suppressing material facts, and whether any portion of the construction encroaches upon the area designated as public road under the applicable Master Plan.

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

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ORDER

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(i) The writ petition in W.P. No. 28803/2023 is hereby allowed. Consequently, the order

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dated 31.08.2023 passed by the Co-ordinate Bench in W.P. No. 3894/2023 is quashed and set aside.

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(ii) The matter is remitted to respondent No.1 – Corporation for a fresh spot inspection of the subject property, after issuing prior notice to both the petitioners and respondent No.2– Smt. Susheela Suresh Babu. The inspection and subsequent proceedings shall be conducted by treating the width of the road as 8.60 meters, as currently existing on ground, without disregarding the road alignment and statutory prescriptions under the Revised Master Plan existing on the date Respondent No.2 applied for sanctioned plan.

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(iii) Respondent No.2 is at liberty to place on record all relevant documents including title deeds, building licence, approved building plan, and any other material relied upon for having undertaken construction, for appropriate consideration by respondent No.1 during the course of the enquiry.

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(iv) Respondent No.1 shall also examine whether any portion of the construction

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undertaken by respondent No.2 encroaches upon the designated road alignment or violates the planning norms and take appropriate action in accordance with law.

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(v) In view of the disposal of W.P.No.28803/2023 and the directions issued herein, the lead petition in W.P.No. 47390/2017 has become infructuous and is accordingly dismissed as such.

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Sd/(SACHIN SHANKAR MAGADUM) JUDGE

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ALB List No.: 2 Sl No.: 4

Mr. Monappa Gowda v. the Commissioner

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Mr. Monappa Gowda v. the Commissioner

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