PADUBIDRI KRISHNA PRABHU v. CORPORATION OF CITY OF MANGALORE
1983-08-08
M.P.CHANDRAKANTARAJ
body1983
DigiLaw.ai
CHANDRAKANTHARAJ URS, J. ( 1 ) THIS Writ petition is disposed of at the state of preliminary hearing after notice to respondent and after hearing the Counsel for parties. ( 2 ) THE petitioner is a owner of a shop premises on the market road at mangalore City, Dakshina Kannada District. The respondent is the Corporation of the City of Mangalore represented by its Administrator. By a notice dated 10-11-1981 the petitioner was called upon to show cause as to why he should not be proceeded against in accordance with law and construction carried out by him without obtaining the licence in contravention of the building bye-laws of the respondent-Municipal Corporation be demolished. The show cause notice also indicated that if satisfactory cause was not shown in writing by the owner of the building, the building would be demolished at the risk and cost of the petitioner. That notice was issued under sec. 321 (i) (e) and sub-sec. (2) of tha karnataka Municipal Corporations Act, 1976, (hereinafter referred to as the Act) and it was issued by the Commissioner of the City of Mangalore. The petitioner replied by his letter dated 27-10-1981 stating that he had not made any unauthorised construction, but only had put up a shutter in order to prevent tresspassers and dirt in the verandha of his shop. But that explanation was not accepted by the Commissioner by his order dated 4-1-1982 and he held that the petitioner had constructed two concrete columns and a cross-beam and an exterior rolling shutter in contravention of the building bye-laws of the corporation and directed its demolition by the petitioner, failing which, by the authorities of the Corporation. ( 3 ) AGGRIEVED by that order of tha commissioner which is at Annexure-C to the petition, the petitioner filed an appeal to the Administrator of the Corporation of the City of Mangalore. The administrator by his order dated 18-10- 1982 dismissed the appeal there by confirming the order of the Commissioner. It is, in those circumstances, the petitioner aggrieved by the order of the administrator and the Commissioner of the corporation of the City of Mangalore,) has presented this writ petition under art. 226 of the Constitution.
The administrator by his order dated 18-10- 1982 dismissed the appeal there by confirming the order of the Commissioner. It is, in those circumstances, the petitioner aggrieved by the order of the administrator and the Commissioner of the corporation of the City of Mangalore,) has presented this writ petition under art. 226 of the Constitution. ( 4 ) THOUGH, before the respondent- corporation (both the authorities) the petitioner contended that he had not effected any unauthorised construction, however, he has now stated that he had erected two cloumns and cross-beam to which the rolling shutter was fixed in order to enclose the verandha of his shop premises. it is also seen from the order of the Commissioner. which is at annexure-E that the Commissioner has found as a matter of fact from the records that by the R. C. C. construction, there has been an increass in the plinth area of 1. 20 metres by 4. 25 metres. He has also recorded that a bean has been put up on the R. C. C. columns. ( 5 ) HOWEVER, Shri U. P. Mallya, learned Counsel appearing for the petitioner, contended that it was only an act of repair and no more which answered to the discription of "repair" under bye- law No. 10 of the building bye laws of the Corporation called the Karnataka city Municipalities (Model) Building bye-laws, 1979, (hereinafter referred to as the Bye-laws ). Bye-law No. 10. 1 of the Bye-laws reads as follows :"10. 1. No such notice shall bedeemed necessary for the following repairs in any existing building in accordance with these bye laws except the repairs which affect the exterior elevation of the buildings or violates any provisions regarding general building requirements, structural safety or fire safety requirements. ( 6 ) FROM the language of the above bye-law it is clear that while a reference to notice is made, that notice is the notice which is required to be given for any alteration that shall be made, under bye law No. 9 and alteration is a term which is specifically defined by bye-law no. 2. 2.
( 6 ) FROM the language of the above bye-law it is clear that while a reference to notice is made, that notice is the notice which is required to be given for any alteration that shall be made, under bye law No. 9 and alteration is a term which is specifically defined by bye-law no. 2. 2. But even before we examine whether the structure erected by the petitioner answers to the discreption of an alteration, it is useful to notice that by the admission of the petitioner himself the front elevation of the shop has undergone a change in as much asits appearance has been alterted. If the exterior elevation of the building is affected, then the dispensation of giving a notice under bye-law No. 9 will not arise. Therefore, that the action of the petitioner is protected by bye-law No. 10 is not the correct statement of the law. ( 7 ) NOW, turning to definition of "alteration", it is so defined as to include a change from one occupancy to another, or structural change, such as an addition to the area or height or the removal of part of a building, or any change to the structure such as the construction of cutting into or removal of any wall partition, column, beam, joist, floor or other support, or a change to or closing of any required means of ingress or egress or a change to the fixtures or equipment. (See Bye-law No. 2. 2. of the Bye-laws ). The erection of two concrete pillars with a cross beam and fixing a rolling shutter to it cannot be said to be not a structural change. Nor can it be said that it does not change the closing by any structure to be kept open or change the means of ingress or egress as admittedly it blocks entrance to the verandha. In fact,! explanation given by the petitioner is that he put up the construction in question only to prevent people tress-passing into the verandha and throwing dirt in the place in the night. Therefore, the ingress has been closed and that fairly and squarely answers to the discreption of what is an alteration as defined in bye-law 2-2.
In fact,! explanation given by the petitioner is that he put up the construction in question only to prevent people tress-passing into the verandha and throwing dirt in the place in the night. Therefore, the ingress has been closed and that fairly and squarely answers to the discreption of what is an alteration as defined in bye-law 2-2. ( 8 ) IN these circumstances, the arguments put forward cannot be accepted and therefore I am unable to find fault with either the Commissioner or the administrator of the Corporation in passing the orders in question. In the result, no interference is called for by this Court under Art 226 of the Constitution. ( 9 ) THE petition is, therefore, rejected. But there will be no order as to costs. --- *** --- .