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2021 Supreme(Kar) 392
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
M. Nagaprasanna, J.
Smt. Jyothi, W/o Divakar – Petitioner
Versus
The State of Karnataka Department of Panchyath Raj Represented By Its Secretary and Ors. – Respondents
Writ Petition No.10519 of 2021 (LB-RES)
Decided On : 22-10-2021
Advocate Appeared:
For the Petitioner:Sri.T.Seshagiri Rao, Advocate
For the Respondent:Smt.Prathima Honnapura, AGA, Sri. B.J. Somayaji, Advocate, Sri. K.N. Mohan, Advocate
Point of Law: There cannot be a vacuum in the regulations in any walk of a civil life in the society.
Headnote:
Factories Act, 1948 - Karnataka Traffic Control Act, 1960 - Karnataka Town and Country Planning Act, 1963 - Karnataka Panchayat Raj Act, 1993 - Sections 269 ,313, 314, 315, 317, 320, 316 and 311 - Code of Civil Procedure.1908 - Order 41 Rule 5 and 6 – Decree - Execution - Form of appeal - Petitioner who claims to be the absolute owner of house properties situated in is before Court calling in question order passed in G.P. Appeal respondent/Executive Officer of vacating interim order that was granted to stall further construction undertaken by respondent - Petitioner, learned Government Advocate appearing for respondent learned Advocate appearing for respondents, learned Advocate appearing for respondent -Petitioner who claims to be absolute owner of house properties abutting construction that is undertaken by respondent, who is owner of house property bearing situated on east of petitioner’s property - Respondent makes an application on before respondent requesting to accord permission for construction of a building on his property - Respondent issues a licence on and a plan in terms of resolution.
Finding of the Court:
It is in public domain that there are mushrooming of construction activities in all the areas coming under the Gram Panchayats, Taluk Panchayats and Zilla Panchayats. The violation of known norms of law in construction is not limited to areas in the Corporation. It has percolated into the areas of Panchayats. Therefore, time has arrived for the Government to regulate the constructions undertaken in the panchayat areas as well. The Government has notified the Bye-laws. The Bye-laws cannot remain on paper and the constructions in the Panchayat areas can go on unabated violating every known norm of law. Therefore, if any of the Panchayats in the State of Karnataka have not adopted the Bye-laws in terms of sub-section (2) of Section 316 of the Act it is for the Government now to forthwith act and issue such notification under sub-section (4) of Section 316, failing which the State would be permitting the constructions within the Panchayat area to go on unbridled without any regulations - Appeal is pending before Executive Officer. It is for Executive Officer to decide appeal within Bye-laws. Since interim order is operating in case at hand which stalls further construction by respondent same shall be in operation till Appellate Authority Executive Officer decides the appeal pending before him – Court are In a society governed by rule of law, it cannot be other way round. - Therefore, it is imperative for State to now act and issue such notification in terms of sub-section (4) of Section 316 of Act to all those Panchayats who have not yet opened their pen to adopt Bye-laws, making it mandatory for Bye-laws to be a regulatory mechanism for construction to be undertaken by its citizens who come within Panchayats.
Result: Writ Petition is allowed
ORDER :
The petitioner who claims to be the absolute owner of house properties bearing Nos. 542/1 and 542/1A situated in Maddur is before this Court calling in question the order dated 3.06.2021 passed in G.P. Appeal No.3/2021-22 by the 2nd respondent/Executive Officer of the Taluk Panchayat, Maddur vacating the interim order that was granted to stall further construction undertaken by the 4th respondent.
2. Heard Sri T.Seshagiri Rao, learned Advocate appearing for the petitioner, Smt. Prathima Honnapura, learned Government Advocate appearing for respondent No.1, Sri B.J.Somayaji, learned Advocate appearing for respondents 2 and 3 and Sri K.N.Mohan, learned Advocate appearing for respondent No.4.
3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows :-
The petitioner who claims to be the absolute owner of house properties abutting the construction that is undertaken by the 4th respondent, who is the owner of house property bearing No.542/2 situated on the east of petitioner’s property. The 4th respondent makes an application on 18-02-2021 before the 3rd respondent requesting to accord permission for construction of a building on his property. The 3rd respondent issues a licence on 17-04-2021 and a plan in terms of the resolution dated 18.02.2021.
4. The petitioner feeling aggrieved by the sanction of the said plan on the ground that it is in violation of law, approached the 2nd respondent by filing an appeal under Section 269 of the Karnataka Panchayat Raj Act, 1993 (‘the Act’ for short) read with Order 41 Rule 5 of the Code of Civil Procedure.
5. The 2nd respondent/Executive Officer accepting the appeal of the petitioner on 27-05-2021 grants an interim order of stay of the construction or any further construction pursuant to the aforesaid sanctioned plan and building licence till the next date of hearing. The 4th respondent on 31-05-2021 appears to have submitted a representation to the 2nd respondent to vacate the interim order granted on 27-05-2021. The Executive Officer acting upon the said representation, without notice to the petitioner, directs the office to secure a report with regard to the construction from the 3rd respondent. The 3rd respondent/ Panchayat communicated to the 2nd respondent approving the action in favour of the 4th respondent which is construction of the alleged building. It is upon the said report, the 4th respondent later makes an application for advancement of the case and vacation of the interim order. On 3-06-2021 the Executive Officer vacates the interim order of stay granted on 27-05-2021 and observes that any construction put up by the 4th respondent would be subject to the result of the appeal filed by the petitioner. It is at that juncture, the petitioner has knocked the doors of this Court challenging the order vacating the interim order and making the construction subject to the result of the appeal.
6. This Court by an order dated 29-06-2021 granted an interim order of stay of the order of the Executive Officer and further construction on the ground that the licence granted to the 4th respondent was contrary to Rule 6 of the Karnataka Panchayat Raj (Gram Panchayats Control over erection of Buildings) Rules, 1994 (‘the Rules’ for short) and the said interim order is in operation as on date.
7. The learned counsel appearing for the petitioner would contend that the sanction of plan in favour of the 4th respondent or grant of a building licence on the face of it is contrary to law. The learned counsel would submit that the law would mean Rule 6 of the Rules which prohibits any such building to come up in the entire sital area.
8. On the other hand, the learned counsel Sri B.J.Somayaji appearing for the 2nd respondent would vehemently refute the submission and contends that the afore-quoted Rules have been repealed and there is no law on which the petitioner could place reliance to contend that grant of building licence is in violation of the Ru
