IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION NO.12299/2015 (LB-RES) BETWEEN:
Smt. Chandrakala, Aged about 48 years, W/o Chandra Rao, Near Basavanagudi, Jain Street, Virajpet – 571218, Coorg District.
(By Sri. T.P. Vivekananda, Advocate) AND:
1. The Deputy Commissioner, Coorg District, Madikeri – 571201.
2. The Thasildar, Virajpet Taluk, Virajpet, Coorg District – 571218.
3. The Chief Officer, Town Panchayath, Virajpet – 571218 Coorg District.
…Petitioner 4. Ajaj Ahmed Aged about 58 years, S/o K.F.Abdul Gafoor, Block No.2, Appaiah Swamy Road, Virajpet, Coorg District – 571218.
5. Fyaz Ahmed, Aged about 54 years, S/o K.F.Abdul Gafoor, Block No.2, Appaiah Swamy Road, Virajpet, Coorg District – 571218.
(By Sri.Vinayaka.B, Advocate for M/s. Haranahalli Law Partners for R3, ...Respondents Sri.S.V.Shastri, Advocate for R4 and R5 Sri.M.A.Subramani, HCGP for R1 and R2) This Writ Petition is filed under Article 226 of the Constitution of India praying to direct the R-1 to 3 to give effect to the notice dated 24.01.2015 vide Ann-N, issued to the R-4 and 5 insisting them to construct retaining wall adjoining to the property of the petitioner.
This Petition coming on for Orders this day, the Court made the following:
O R D E R The petitioner has filed I.A.No.1/2019 seeking for directions to respondent Nos.1 to 3 to direct respondent Nos.4 and 5 to put up construction of retaining wall.
2. The petitioner claims to be the owner and in peaceful possession and enjoyment of the residential house constructed within the Virajpet Town Panchayath. It is stated that the petitioner has constructed residential house after demolishing the existing old structure, pursuant to permission accorded by respondent No.3.
3. It is further submitted that respondent Nos.4 and 5 who are the owners of property adjacent to that of petitioner had commenced excavation for the purpose of putting up further construction and while doing so, the civil work carried out by respondent Nos.4 and 5 is stated to have exposed the property of the petitioner to the risk of collapse and damage. It is submitted that police complaint had been lodged and respondent Nos.4 and 5 had undertaken to carry out necessary works to ensure that there was no damage to the property of the petitioner. It is further submitted that the petitioner had approached respondent No.3 to take necessary action.
4. It is the contention of the petitioner that the construction by respondent Nos.4 and 5 including excavation has exposed the petitioner’s property to the risk of collapse and damage. It is submitted that the respondent – Town Panchayath by way of an order dated 28.06.2019 had directed respondent Nos.4 and 5 to take necessary action to put up retaining wall and had further provided that in the event of failure to do so by invoking powers under Section 213 of the Karnataka Municipalities Act, 1964, the civil work would be carried out by the Town Panchayath and the cost for such civil work would be recovered from the respondent Nos.4 and 5.
5. The learned counsel for respondent Nos.4 and 5 submits that he has filed statement of objections to the said application.
6. It is however to be noticed that learned counsel for the respondent No.3 has filed memo along with list of documents. The status report enclosed along with the said memo would reveal that respondent Nos.4 and 5 have put up retaining wall partially and further work remains to be taken up.
7. This Court by order dated 27.09.2019 had noticed that respondent Nos.4 and 5 had not complied with the order and direction issued by the Town Panchayath as per order dated 21.08.2019. There was a further direction to respondent Nos.4 and 5 to comply with the earlier direction dated 21.08.2019. It appears that subsequent to the last date of hearing, there has been no action on behalf of respondent Nos.4 and 5 so as to comply with the direction as contained in the order dated 21.08.2019. Taking note of Section 213 of the Karnataka Municipalities Act, 1964 and taking note of the order at Annexure-Y, the respondent No.3 is directed to take further action pursuant of the order at Annexure- Y in terms of Section 213 of Karnataka Municipalities Act, 1964. The said action to be taken expeditiously within a period not later than 3 weeks from today. Needless to state if the expenses are incurred and civil works undertaken as envisaged amount could be recovered as provided for under Section 213 of the Act.
Accordingly, petition is disposed of and I.A.No.1/2019 is also disposed of.
Sd/- JUDGE NS