IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 PRESENT THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY AND THE HON'BLE MR.JUSTICE R.DEVDAS WRIT APPEAL NO. 4199 OF 2017 (LB-UC) BETWEEN:
SMT.M.C.NALINAKSHI, W/O HEMANTH T.R., AGE: 42 YEARS, R/O PARK ROAD, S.S.PURAM, TUMKUR – 572102. ... APPELLANT (BY SRI GURUDAS S.KANNUR, SENIOR ADVOCATE FOR SRI NAGARAJA R.C., ADVOCATE) AND:
1. THE SECRETARY, URBAN DEVELOPMENT DEPARTMENT, GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BENGALURU – 560001.
2. THE COMMISSIONER, TUMKUR CITY CORPORATION, TUMKUR – 572101.
3. THE TOWN PLANNING MEMBER, URBAN DEVELOPMENT AUTHORITY (TUDA), TUMKUR – 572101.
4. SMT.NAGAMMA, W/O LATE K.V.PUTTAGANGAIAH, AGE 79 YEARS, R/O PARK ROAD, SOMESHWARAPURAM, TUMKUR – 572102.
...RESPONDENTS (BY SRI V.SREENIDHI, AGA FOR R1, SRI SUBRAMANYA R, ADVOCATE FOR R2, SRI P.S.MANJUNATH, ADVOCATE FOR R3, SRI K RANJAN KUMAR, ADVOCATE FOR R4) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURTS ACT PRAYING TO SET ASIDE THE ORDER DATED 25.04.2017 PASSED IN THE W.P.No.16072/2017.
THIS WRIT APPEAL COMING ON FOR ADMISSION THIS DAY, NARAYANA SWAMY J., DELIVERED THE FOLLOWING:-
JUDGMENT Being aggrieved by the order dated 25.04.2017 passed in W.P.No.16072/2017 by the leaned Single Judge, the appellant/petitioner has preferred this appeal.
2. The case of the complainant, who came on record by filing an impleading application, is that the petitioner put up construction contrary to the building bye-laws 2015 and in violation of the sanctioned plan.
3. Learned counsel for the appellant has submitted that as per the report, the violation/deviation is 4.4%, which is less than 10%, which comes under the condonable limit, of which the Commissioner is having discretionary power to condone/regularize the same as per Section 321A of the Karnataka Municipal Corporations Act, 1976. The said power has not been exercised and Section 321 of the Corporation Act does not apply in case violation not being above 50%.
4. Learned counsel for respondent No.2- Corporation has submitted that case of the petitioner- appellant cannot be considered since the building bye-
laws came into force with effect from 2015, whereas the construction has been commenced prior to 2015, hence, the said benefit is not available to the appellant. Secondly, the interim order of status-quo was granted on 22.08.2017 directing both parties to maintain status quo, but quite contrary to the same and in violation of the same, petitioner has put up construction, for which notices have been issued to the petitioner. Hence, in view of violation of sanction plan and bye-laws, the impleading applicant has filed an application for initiation of contempt proceedings since the construction is almost complete, which is in contravention of the interim order passed by this Court.
5. We have heard the learned counsel on both sides and gone through the records.
6. The respondents urge that exercising of discretionary power as per building bye-law 2015 is not permissible since the construction commenced prior to 2015. The case of the petitioner has not been considered for regularization of violated portion, since no such application was made before the Commissioner for exercising of the discretionary power.
7. We have gone through the records and photographs produced by both the parties disclose that the construction has been put up completely. Under these circumstances, the regularization/condonation of the violated/deviated portion has to be considered before demolition. Accordingly, we feel it appropriate to permit the appellant/petitioner to make necessary application with reference to the regulations of building bye-laws 2015, wherein the Commissioner has got discretionary power. Though the same is prospective in nature, we feel it as an exception case, in which we direct the respondent No.2-Commissioner to consider the application, if any, to be made by the appellant/petitioner within a period of two weeks for condonation/regularization of violated/deviated portion.
8. On making such an application by the appellant, the Commissioner is directed to consider the said application and pass appropriate orders within a period of four weeks from the date of filing of such application.
It is also made clear that the Commissioner is at liberty to pass appropriate orders. If the Commissioner comes to the conclusion not to exercise the discretionary power, then the appellant/petitioner is to be directed to demolish the violated/deviated portion.
9. If no such application is to be made by the appellant within a period of two weeks, it is presumed that there will be no application and the Commissioner is directed to proceed with the demolition of violated/deviated portion.
With these observations, appeal stands disposed of.
I.A.No.1/2018 for initiation of the contempt proceedings stands disposed of in the light of the discussion made above.
Sd/- JUDGE Sd/- JUDGE BSR