IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV W.P. NO.50515/2018 & W.P.NOS.52193-52195/2018(LB-RES) BETWEEN 1.M/S SRI NANDHI BUILDERS NO.4, FLAT NO.102, ROSE GARDEN B BLOCK B B ROAD, BY PASS ROAD, AIRPORT ROAD, YELAHANKA OLD TOWN. BANGALORE-560064, REPTD. BY ITS PROPRIETOR SRI NAGARAJAIAH M S S/O SIDDARAMAIAH AGED ABOUT 40 YEARS AND ALSO AT "NANDI RESIDENCY NO.2930/535, 537 & 1, DAVANAGERE-577001 2.DR NITHIN ANANTH BANDEKAR S/O ANANTH BANDEKAR AGED ABOUT 48 YEARS, R/O NO.4095/7, RAMAKANTH NILAYA, 12TH CROSS, SIDDAVEERAPPA LAYOUT. DAVANAGERE-577001, REPTD. BY THEIR GENERAL POWER OF ATTORNEY HOLDER MR.NAGARAJAIAH M S S/O SIDDARAMAIAH 3.SMT SUNITHA, W/O DR. A H SHIVAYOGISWAMY AGED ABOUT 52 YEARS, R/O NO.456/2, 7TH CROSS, 8TH MAIN, P J EXTENSION, DAVANAGRE-577001.
REPTD. BY THEIR GENERAL POWER OF ATTORNEY HOLDER MR.NAGARAJAIAH M S S/O SIDDARAMAIAH 4.DR VANAJA NARVEKAR W/O LATE R N NARVEKAR AGED ABOUT 74 YEARS, R/O NO.4095/7 RAMAKANTH NILAYA 12TH CROSS,SIDDAVEERAPPA LAYOUT DAVANAGERE-577001 REPTD. BY THEIR GENERAL POWER OF ATTORNEY HOLDER MR.NAGARAJAIAH M S S/O SIDDARAMAIAH .. PETITIONERS (BY SRI. VIGHNESHWAR S SHASTRI, ADVOCATE) AND:
1.DAVANAGERE MUNICIPAL CORPORATION P B ROAD, DAVANAGERE PIN-577002, BY ITS COMMISSIONER.
2.ASSISTANT EXECUTIVE ENGINEER DAVANAGERE MUNICIPAL CORPORATION P B ROAD, DAVANAGERE PIN-577002.
3. DEVARAMANI SHIVAKUMAR, S/O D.MAHARUDRAPPA, AGED ABOUT 50 YEARS, R/O NO.2517, 3RD A MAIN ROAD, S.S.LAY OUT, B BLOCK, DAVANAGERE--577004. …RESPONDENTS.
(BY SRI. B.K.MANJUNATH, ADV. FOR R1, SRI.G.R.GURUMATH, SENIOR COUNSEL FOR SRI.JAGADEESHGOUD PATIL, ADVOCATE) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTICE DATED 29.10.2018 ISSUED BY R-2 AS PER ANNEXURE-G ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING;
ORDER Petitioners have challenged the notice dated 29/10/2018 enclosed at Annexure-G on various grounds including the Assistant Executive Engineer does not possess power to issue notice under Section 321(1) of the Karnataka Municipal Act (‘KMC Act’ for short) and that there is no violation as alleged and notice is not legally tenable.
2. However, the counsel for the Davanagere Municipal Corporation as well as the learned senior counsel representing the counsel for respondent No.3 now ordered to be impleaded state that the present writ petitions are not maintainable, as the order that has been challenged is only a provisional order and that there is a procedure contemplated under the Karnataka Municipal Corporations Act, 1976, whereby the notice/order at Annexure-G be only in the nature of order under Section 321(1) i.e. provisional order, petitioners can raise all contentions before the authority and that in the present case petitioners having already filed objections, the question of interference in the said proceedings at this stage does not arise.
3. Counsel for the petitioners states that he would restrict the present writ petitions for consideration of prayer No.1, wherein they have sought for issuance of writ of certiorari for quashing of the notice/order at Annexure-G.
4. After hearing the matter for some time, counsel for the petitioners submits that his grievance would be redressed, if he is permitted to place his objections that have been filed pursuant to Annexure-G are considered in accordance with law.
5. Learned senior counsel appearing on behalf of respondent No.3 submits that before the authority which is going to consider the objections filed by the petitioners, petitioners may be permitted to present their say, as all proceedings that have been initiated are at their instance.
6. Suffice to say in view of the fact that the petitioners have already filed their objections to the notice at Annexure-G, the respondent/Davanagere Municipal Corporation is to decide the same by treating the same as an order under Section 321(1) of the KMC Act. The authority is required to take note of the procedure provided under Section 321 of the KMC Act, consider the objections of the petitioners and proceed in accordance with law.
7. The petitioners are to be afforded an opportunity of personal hearing on the dates specified, if so requested.
The authority while deciding the action to be taken in pursuance of the order under Section 321(1) of the KMC Act, is at liberty to carry out spot inspection, if required.
8. During the process of taking the matter forward consequent to order under Section 321(1) of the KMC Act, it would be open to the respondent No.3 to put-forth his case. However, it is for the respondent No.1 to decide the nature and extent of intervention, as is permissible as regards the respondent No.3 in the proceeding. Parties to appear before respondent No.1 on 18/02/2019 at 11.00 a.m. to facilitate further proceedings.
9. The writ petitions are disposed of without recording any finding as regards Annexure-G, in the light of the stand of the parties.
Msu Sd/- JUDGE