IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD W.P.Nos.46376/2016 & 47458/2016(LB-RES) BETWEEN:
SRI DEVADAS HEGDE AGED ABOUT 73 YEARS S/O LATE. B CHANDRAHAS HEGDE R/AT NYARMA HOSAMANE SHIRVA, UDUPI TALUK AND DISTRICT-576104.
... PETITIONER (BY SRI.K.A.ARIGA, ADV.) AND 1. STATE OF KARNATAKA REPRESENTED BY URBAN DEVELOPMENT DEPARTMENT VIKASA SOUDHA, AMBEDKAR VEEDHI BANGALORE-560 001 REPRESENTED BY ITS SECRETARY.
2. THE VILLAGE PANCHAYATH SHIRVA GRAMA PANCHAYATH SHIRVA, UDUPI TALUK AND DISTRICT-576104 REPRESENTED BY ITS PANCHAYATH DEVELOPMENT OFFICER.
3. THE TALUK PANCHAYATH RAJATHADRI UDUPI TALUK AND DISTRICT-576104 REPRESENTED BY ITS EXECUTIVE OFFICER.
4. THE JILLA PANCHAYATH RAJATHADRI UDUPI DISTRICT-576104 REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.
5. URBAN AND RURAL PLANNING DEPARTMENT RAJATHADRI MANIPAL, UDUPI-576 104 REPRESENTED BY ITS DIRECTOR.
6. SRI SRIDHARA POOJARI S/O AITHA POOJARI R/AT BOOTHA BETTU, SHIRVA UDUPI TALUK AND DISTRICT-576104 ... RESPONDENTS (BY SRI.ANANDEESHWARA H.R., HCGP. FOR R1 & R5, SRI. ASHOK N NAYAK, ADV. FOR R2, R3 & R4, SRI. PRASANNA.V.R. ADV. FOR R6.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENT-2 TO IMPLEMENT THE ORDER PASSED BY THE RESPONDENT-3 DTD:19.10.2015 VIDE ANNEXURE-A IN TALUK PANCHAYATH ADMINISTRATION C.R.NO.2015-16 & ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R In these writ petitions, the petitioner has sought for the following reliefs:
“i) Issue a Writ a Mandamus to direct the 2nd respondent to implement the order passed by 3rd Respondent dated: 19.10.2015 vide Annexure-A in Taluk Panchayath Administration C.R.No. 2015/16.
ii) Issue a Writ of Mandamus to direct the 2nd respondent to implement the resolution passed by 4th Respondent dated: 06.08.2012 vide Annexure-B in Jilla Panchayath Development C.R.12.2012-13.
iii) Issue a Writ of Mandamus to direct the 2nd respondent to implement the direction issued by 5th respondent dated:06.01.2014 vide Annexure-E, Urban and Rural Planning Department, Uttar Kannada 2224/2012-13.
iv) Grant such other and further relief’s as this Hon’ble Court deems fit and proper.”
2. The case of the petitioner is that the petitioner’s family is holding vast immovable properties in Shirva Village of Udupi Taluk and they have also donated their properties for the public purpose. That on 26.11.2005, a public road was formed in 15th and 16th Ward of Shirva Village and it was inaugurated in a public function. The said road is in existence for more than 100 years and it was named after the family head of the petitioner “Radhamma”. The respondent No.6 started putting up a commercial complex adjacent to the said Radhamma Road violating the Building License norms, rules and regulations issued by the respondent No.2. Even though the license was granted by the respondent No.5 for construction of ground and first floor, the respondent No.6 has constructed upto third floor. Being aggrieved by the same, the petitioner filed an appeal under Section 269 of the Karnataka Panchayat Raj Act before the Taluk Panchayat. The respondent No.3-Taluk Panchayat during the pendency of the consideration of the appeal, has issued a letter vide Annexure-A dated 19.10.2015 directing the respondent No.2- Panchayat Development Officer to direct the respondent No.6 to stop further construction till the appeal has been disposed of. Further, the case of the petitioner is that inspite of specific directions, the Panchayat Development Officer has allowed the respondent No.6 to further construct the building even after the period of building licence expired vide Annexure-C i.e., from 18.5.2014 to 17.5.2015. The Panchayat Development Officer has allowed to construct beyond that time. Hence, the petitioner has approached this Court.
3. Sri.K.A.Ariga, learned counsel appearing for the petitioner submits that the respondent No.6 has obtained the licence for construction of the commercial complex vide Annexure-C. The Annexure- C is very clear that permission has been granted for construction from 18.5.2014 to 17.5.2015. Even after expiry of the building licence period, the respondent No.6 has been allowed to construct the commercial complex. He further contended that there is a specific condition mentioned in the licence that he has to construct the building within 40 mtrs. distance from the district main road. The above construction has been completed contrary to Annexure-C. He further contended that inspite of specific directions from the Executive Officer, Taluk Panchayat vide Annexure-A, the Panchayat Development Officer has allowed the respondent No.6 to complete the building construction even after the expiry of the period i.e., 17.5.2015. Hence, he sought for allowing the writ petitions. He further submits that pursuant to the order dated 4.6.2019 passed by this Court, directing the respondent No.2, the Panchayat Development Officer to submit a report with regard to construction put up by respondent No.6, the respondent No.2 has filed a report dated 20.6.2019 and has mentioned that there is violation of license issued by the Executive Officer, Taluk Panchayat. Hence, he sought for allowing the writ petitions.
4. The learned counsel appearing for the respondents-Panchayat submits that now the appeal, which is filed by the petitioner is pending before the Taluk Panchayat, all these contentions can be raised in the said appeal. The appellate authority will consider the same and pass appropriate orders.
5. The learned counsel appearing for the respondent No.6 submits that as per the license issued vide Annexure-C, the construction of the building was completed on or before 17.5.2015. In the Government Order vide Annexure-R1, the distance from the district highway is decreased from 40 mtrs. to 6 mtrs. Therefore, he submits that respondent No.6 has not violated the conditions as mentioned in the licence. He contended that the appeal filed by the petitioner has been kept in abeyance till the disposal of the writ petition before this Court.
6. Heard the learned counsel appearing for the parties.
7. It is not in dispute that the respondent No.6 has started construction after obtaining the licence from the Grama Panchayat vide Annexure-C. In the Annexure-C, there is time limit fixed for construction i.e., from 18.5.2014 to 17.5.2015 and also there is a condition that there should not be any construction within 40 mtrs. from the district main Road. Specific allegations of the petitioner is that construction put up by the respondent No.6 is contrary to license issued by the Grama Panchayat. Being aggrieved by the same, the petitioner has filed the appeal before respondent No.3, Executive Officer, Taluk Panchayat. During the pendency of the appeal, there is a specific direction issued by the Taluk Panchayat vide Annexure-A. Inspite of that, the Panchayat Development Officer has allowed the respondent No.6 to complete the construction.
8. Now, the question is to whether the respondent No.6 has violated the conditions mentioned in the licence issued vide Annexure-C and whether he has violated the directions issued by the Executive Officer, Taluk Panchayat vide Annexure-A regarding the construction of the building. In respect of the very same allegations, appeal is pending before the respondent No.3, Executive Officer, Taluk Panchayat. The petitioner can raise all these contentions before the respondent No.3 in the said appeal.
9. In view of the above observations, the writ petitions are disposed of. The Executive Officer, Taluk Panchayat is directed to reopen the appeal filed by the petitioner in Appeal No.5/2015. The parties are at liberty to raise all the contentions in the appeal. The Executive Officer, Taluk Panchayat is directed to consider all the contentions raised by the parties and pass appropriate orders in accordance with law within three months from the date of receipt of copy of this order.
Sd/- JUDGE DM