IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 12TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR WRIT APPEAL NO.6092 OF 2017 (LB-RES) BETWEEN:
T. I. ABDULLA AGED ABOUT 63 YEARS, ADVOCATE, SON OF T.A. IBRAHIM, #L-142, 7TH MAIN, X SECTOR, LIC COLONY, HAL III STAGE, BENGALURU-560 075.
(BY SRI N.K. RAMESH, ADVOCATE) AND:
1. THE COMMISSIONER CITY MUNICIPALITY, MADIKERI-571 201, KODAGU DISTRICT.
2. THE CHAIRMAN ...APPELLANT MADIKERI URBAN DEVELOPMENT AUTHORITY, NEAR KSRTC DEPOT, MADIKERI-571 201.
3. THE DIRECTORATE OF MUNICIPAL ADMINISTRATION MULTISTOREYED BUILDING, DR. AMBEDKAR VEEDHI, BENGALURU-560 001.
4. SRI K.S. KAVAN ADVOCATE, AGED ABOUT 50 YEARS, SON OF K. SUBBAIAH, NEAR RAGHAVENDRA TEMPLE, MADIKERI-571 201, KODAGU DISTRICT.
…RESPONDENTS (BY SRI DEVHADAS, SENIOR COUNSEL FOR SMT. K.S. ANASUYADEVI, ADVOCATE FOR R-1; SRI R. NAGENDRA NAIK, ADVOCATE FOR R-2; R-3 IS SERVED AND UNREPRESENTED;
SRI M.T. NANAIAH, SENIOR COUNSEL AND SRI M.A. NIRANJAN, ADVOCATE FOR SRI JAGADISH BALIGA N., ADVOCATE C/R-4) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT READ WITH ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 01.09.2017 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT IN WRIT PETITION NO.55393 OF 2015 BY ALLOWING THIS WRIT APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
***** THIS WRIT APPEAL COMING ON FOR ADMISSION THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 1-9-2017 passed by the learned Single Judge in Writ Petition No.55393 of 2015, while holding that construction of respondent No.4 is not regularized, the parties will be at liberty to approach the concerned Civil Court, the writ petitioner is in appeal.
2. The case of the petitioner is that, respondent No.4 before the learned Single Judge has violated the sanction plan and put up unauthorized constructions. Inspite of making complaints to the Municipality, nothing has come of it. Therefore, the instant writ petition was filed seeking for a writ of mandamus to direct the 1st and 2nd respondents to take statutory action against the 4th respondent for violation of the sanction plan etc. The learned Single Judge in the impugned order, held that no observations could be made in the present petition. The respondent - Municipality was directed to consider the application of respondent No.4 for regularization in accordance with law within the permissible limits. That for a period of eight weeks, no further action be taken in the matter. That if the construction in question of respondent No.4 is not regularized, the parties will be at liberty to approach the concerned Civil Court by way of civil suit.
3. On considering the contentions and the order passed by the learned Single Judge, we are unable to accept the reasons assigned. We fail to understand as to how an order could be passed in favour of the 4th respondent by directing the Municipality to consider his application for regularization, when that was not even the subject matter before the learned Single Judge. The lis between the parties was only with regard to violation of the sanction plan. It was that, which the learned Single Judge should have been concerned with. Whether there has been violation of the sanction plan or not is for the authorities to decide. Rather than doing so, to direct the Municipality to consider the application for regularization, in our considered view, was beyond the scope of the Writ Petition. It is for the Municipality to place on record as to whether there is violation or not.
4. The statement of objections filed by the respondent - Municipality clearly indicates that they are hand in glove with respondent No.4. They have gone to the extent, to ensure that the illegal construction of respondent No.4 is protected. Municipality was directed on the previous date to come clean to this Court and to file an affidavit regarding the true state of affairs. Nothing worthwhile is forthcoming. On considering the statement of objections as well as the memo dated 12-4-2019 enclosing the copy of the completion Certificate dated 4-10-2017, it clearly indicates that the Municipality is hand in glove with respondent No.4. They are party to the existing violations by respondent No.4. Under these circumstances, we are of the view that appropriate directions require to be issued.
Consequently, the writ appeal is allowed.
1) The order dated 1-9-2017 passed by the learned Single Judge in writ petition No.55393 of 2015 is set aside.
2) Respondent No.1 herein is directed to re- survey the property and thereafter to take appropriate action for the violation of the sanction plan. The same shall be done within a period of four weeks from the date of receipt of a copy of this order.
All orders, subsequent to the order passed by the learned Single Judge are set aside.
Pending I.As stand rejected.
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Sd/- JUDGE