Research › Search › Judgment

Karnataka High Court · body

2022 DIGILAW 1333 (KAR)

Batyappa v. Commissioner

2022-10-10

ASHOK S.KINAGI

body2022
JUDGMENT/ORDER 1. The petitioner aggrieved by the order dtd. 27/9/2019 passed in Appeal No.823/2016 by the Karnataka Appellate Tribunal, Bengaluru, has filed this writ petition. 2. Brief facts leading rise to filing of this petition are as under: The elder brother of the petitioner viz. M. Krishnappa filed a suit in O.S.No.123/1993 against the petitioner and his brothers for partition and separate possession in respect of the joint family properties. The family members of the petitioner have filed a compromise petition in the said suit and accordingly, entire land in Sy.No.102/2 measuring 1 acre 33 guntas fell to the share of the petitioner and his brothers jointly excluding M Krishnappa and subsequently, the said Krishnappa had sold the property which was fallen to his share to third parties. It is contended that Krishnappa has forged the signature of the petitioner and his brothers and created a panchayath parikath and on the basis of the said panchayath parikath, he got entered his name in the RTC in respect of Sy.No.102/2 measuring 8 guntas. On the strength of the RTC, the said Krishnappa tried to interfere with the peaceful possession of the property in Sy.No.102/2. The petitioner and others filed a suit in O.S.No.798/2009 for the relief of permanent injunction against the said Krishnappa. In order to avoid the interference of Krishnappa, the petitioner and his brothers have constructed a building in Sy.No.102/2 during the year 2007-08. Krishnappa gave a complaint on 21/12/2015 to respondent No.2 about the illegal construction of the shed. Respondent No.2 on the strength of the complaint filed by Krishnappa has initiated proceedings under the provisions of the Karnataka Municipal Corporation Act, 1976 (for short 'the KMC Act'). A provisional order was passed under sub sec. (1) of Sec. 321 of the KMC Act. Thereafter, show cause notice was issued under sub sec. (2) of Sec. 321 of the KMC Act along with the copy of the provisional order to the petitioner. The petitioner submitted a reply to the said show cause notice. Respondent No.2 being dissatisfied with the reply submitted by the petitioner has confirmed the provisional order under sub sec. (3) of Sec. 321 of the KMC Act. The petitioner aggrieved by the confirmation order dtd. 6/9/2016 preferred appeal before the Karnataka Appellate Tribunal in Appeal No.823/20126. The Appellate Tribunal after hearing the parties dismissed the appeal and confirmed the confirmation order dtd. 6/9/2016. (3) of Sec. 321 of the KMC Act. The petitioner aggrieved by the confirmation order dtd. 6/9/2016 preferred appeal before the Karnataka Appellate Tribunal in Appeal No.823/20126. The Appellate Tribunal after hearing the parties dismissed the appeal and confirmed the confirmation order dtd. 6/9/2016. The petitioner aggrieved by the same has filed this writ petition. 3. Heard learned counsel for petitioner. 4. Learned counsel for the petitioner submits that respondent No.2 without holding an enquiry, passed an order of confirmation under sub sec. (3) of Sec. 321 of the KMC Act. He submits that the confirmation order passed by respondent No.2 is in violation of the principles of natural justice. 5. .He submits that the Tribunal without considering the said aspect has proceeded to pass the impugned order. He submits that the impugned order passed by the Appellate Tribunal is contrary to Sec. 321 of the KMC Act. Hence, on these grounds he prays to allow the writ petition. 6. Perused the records and considered the submissions of the learned counsel for the petitioner. 7. In order to consider the case of the petitioner, it is necessary to examine Sec. 321 of the KMC Act. "321. Demolition or alteration of buildings or well work unlawfully commenced, carried on or completed.- (1) If the Commissioner is satisfied,- (i) that the construction or re-construction of any building or hut or well,- (a) has been commenced without obtaining his permission or where an appeal or reference has been made to the standing committee, in contravention of any order passed by the standing committee; or (b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based; or (c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye-laws; or (ii) that any alteration required by any notice issued under sec. 308, have not been duly made; or (iii) that any alteration of or addition to any building or hut or any other work made or done for any purpose into, or upon any building or hut, has been commenced or is being carried on or has been completed in breach of sec. 308, have not been duly made; or (iii) that any alteration of or addition to any building or hut or any other work made or done for any purpose into, or upon any building or hut, has been commenced or is being carried on or has been completed in breach of sec. 320, he may make a provisional order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Commissioner, has been unlawfully executed, or make such alterations as may, in the opinion of the Commissioner, be necessary to bring the work into conformity with the Act, rules, byelaws, directions or requisitions as aforesaid, or with the plans or particulars on which such permission or orders was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well or hut. (2) The Commissioner shall serve a copy of the provisional order made under sub-sec. (1) on the owner or builder of the building or hut or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed. (3) If the owner or builder fails to show cause to the satisfaction of the Commissioner, the Commissioner may confirm the order, with any modification he may think fit and such order shall then be binding on the owner. (4) XXXX " 7.1. Sub sec. (1) of Sec. 321 of the KMC Act provides that if the Commissioner is satisfied that the construction has been commenced without obtaining permission then, he shall pass a provisional order requiring the owner of the building to demolish the work done. Further the Commissioner shall serve copy of the provisional order made under sub sec. (1) of Sec. 321 on the owner of the building and further together with the notice requiring him to show cause within a reasonable time to comply the provisional order, failing which, the provisional order may be confirmed as per sub sec. (3) of Sec. 321 of the KMC Act. 8. (1) of Sec. 321 on the owner of the building and further together with the notice requiring him to show cause within a reasonable time to comply the provisional order, failing which, the provisional order may be confirmed as per sub sec. (3) of Sec. 321 of the KMC Act. 8. It is not in dispute that the petitioner has constructed a building in the land Sy.No.102/2 and further that the brother of the petitioner has lodged a compliant against the petitioner for constructing building without obtaining sanction from respondent No.2. On the basis of the complaint submitted by one Krishnappa, respondent No.2 after satisfying himself that the petitioner has constructed the building without sanction plan, has passed the provisional order under sub sec. (1) of Sec. 321 of the KMC Act. Show cause notice was issued under sub sec. (2) of Sec. 321 enclosing the copy of the provisional order. The said show cause notice along with the provisional order was served on the petitioner. The petitioner has replied to the said show cause notice. Respondent No.2 being dissatisfied with the reply submitted by the petitioner has passed the confirmation order. The petitioner aggrieved by the confirmation order preferred an appeal before the Karnataka Appellate Tribunal. The Appellate Tribunal after hearing the parties dismissed the appeal and confirmed the confirmation order dtd. 6/9/2016. The petitioner aggrieved by the same has filed this writ petition. 9. Admittedly, the construction undertaken by the petitioner is without sanction plan and the same is unauthorised. The Commissioner passed the provisional order and after considering the reply passed the confirmation order. The confirmation order passed by respondent No.2 is in accordance with Sec. 321 of the KMC Act. The Tribunal on reappreciation of the material on record was justified in dismissing the appeal. Hence, I do not find any ground to interfere with the impugned order. Accordingly, the writ petition is dismissed.