IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.3265/2019 (LB-BMP) Between:
Sri. M.Ananda, Aged about 38 years, S/o. Sri.H.M.Munikrishnappa, No.21/1, 8th Cross, 8th ‘C’ Street, Jogupalya, Halasuru, Bengaluru – 560 005. … Petitioner (By Sri. Abhinav R., Advocate) And:
1. The Bruhat Bengaluru Mahanagara Palike, N.R.Square, Bengaluru – 560 002, Represented by its Commissioner.
2. The Assistant Executive Engineer, Domlur Sub-Division, 1st Main Road, 1st ‘B’ Cross, Domlur Extension, Bengaluru – 560 071. ... Respondents (By Sri. S.N. Prashanth Chandra, Advocate for R1) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the confirmation order dated 17.01.2019 issued by R-2 at Annexure – F to the writ petition and consequently afford an opportunity to the petitioner to file his objections in relating to the provisional order, by allowing the present petition and etc.
This Writ Petition coming on for Preliminary Hearing this day, the Court made the following:
ORDER Learned counsel, Sri. S.N. Prashanth Chandra accepts notice for respondent Nos.1 and 2.
2. The petitioner has challenged the order passed under Section 321(3) of the Karnataka Municipal Corporations Act, 1976 (for short, ‘the Act’) dated 17.01.2019, whereby an order confirming the provisional order has been passed and the petitioner has been directed to remove the illegal constructions carried out contrary to the bye-laws passed under the Act and file necessary compliance report with the authority. The primary contention of the petitioner is that the notice of the provisional order was issued to the petitioner on 10.01.2019, but was served on him only on 14.01.2019 as evidenced from the tracking report produced at Annexure – E1.
3. The petitioner states that notice provided a period of seven days to the petitioner to show-cause as to why the provisional order need not be confirmed.
4. The petitioner states that notice was served on 14.01.2019 and any decision by the authority ought to have been made after a lapse of seven clear days. If that were to be so, petitioner submits that any order could have been passed only after 21.01.2019 and that in the present case order has been passed confirming the provisional order on 17.01.2019.
5. It is clear that the notice that is issued to the petitioner pursuant to an order under Section 321(1) and (2) of the Act must provide for reasonable time to be named in such notice calling upon the owner of the building to show-cause within the time stipulated as to why order passed under Section 321(1) of the Act ought not to be confirmed.
6. Admittedly, in the present case, the notice issued communicating the provisional order itself provides for a period of seven days. Accordingly, the order that is passed at Annexure – F is within the period that was afforded to the petitioner to make out a case for non-confirming of the provisional order. Taking note the above facts, the order under Section 321(3) of the Act is liable to be set aside and the petitioner is permitted to submit his reply to the provisional order at Annexures – D and D1 within a period of seven days from the date of receipt of the copy of the order.
7. It is made clear that though in the normal course the remedy to challenge the order under Section 321(3) of the Act would be under Section 443A to the Karnataka Appellate Tribunal, however, noticing that there is a clear violation of the principles of natural justice and an undisputable violation of reasonable time as referred to under Section 321(1) and (2) of the Act, present petition is entertained and impugned order at Annexure-F is set aside. Accordingly, petition is disposed of, subject to the above observation.
Sd/-
JUDGE hnm