Point of Law : Prevalent situation either in the limits of the Corporation, Municipality or the Panchayat if noticed, it would demonstrate clear apathy on the part of the Authorities towards the citizens, as illegal and unauthorised construction of the buildings and other structures, as observed by the Apex Court, would not only violate the Municipal Laws, the concept of planned development of a particular area, but affects various fundamental and constitutional rights of other persons.

ORDER :

The petitioner is before this Court calling in question an order dated 09-11-2021, by which, the property of the petitioner is sought to be demolished invoking certain provisions of the Karnataka Municipal Corporations Act, 1976 (‘the Act’ for short) and has sought for a consequential direction by issuance of writ in the nature of mandamus to hold that the license for such construction is deemed to have granted by the Shimogga City Corporation (‘the Corporation’ for short) under the Act.

2. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:-

The petitioner is a resident of Shimogga and is in possession of a site bearing No.2150/3, PID No.32620, which is carved out of Sy.No.25/3 in Gurupura, Ward No.5 (Old Ward No.12), Shimogga, measuring 1680 sq.ft., which comes within the precincts of the Corporation. The petitioner comes in possession of the said property on purchasing the same in terms of a registered sale deed dated 11-07-2007. It is the claim of the petitioner that khata is changed in his name and he has been paying tax regularly on the property.

3. The petitioner intending to construct a house in the vacant site, makes an application and claims to have submitted all the relevant documents and a building plan for such construction on 13-11-2020. In terms of Section 313 of the Act, the application of the petitioner had to be processed within the time stipulated therein. That having not been done, the claim of the petitioner is that, a license for such building is deemed to have been granted under Section 315 of the Act. The petitioner laid the foundation for the house in the month of January, 2021. Based upon a complaint registered against such construction, a notice was issued by the Corporation on 21-01-2021, directing the petitioner to stop all further construction, as the construction was in the buffer area adjacent to a nala running on the backside of the property. The petitioner submits his reply on 29-01-2021, requesting the Corporation to conduct a survey of the property and determine whether the construction is being undertaken by encroachment and then, further action be taken.

4. Without conducting a survey, one more notice was issued on 03-02-2021, directing the petitioner to stop further construction till survey report is obtained and further directed the petitioner to undertake construction only after necessary permission is granted. To this, again the petitioner submits a representation on 22-02-2021, before the Standing Committee of the Corporation. The Standing Committee also did not take any action.

5. The Corporation issued a provisional order under Sections 321(1)(a), 314 and 436A(1) of the Act, on 19-03-2021, directing demolition of the construction on the ground that there is encroachment of Government land and he is an unauthorized occupant of the said property. The petitioner submits his reply to this notice on 29.03.2021, after which, there was no action taken by the Corporation. Eight months passed by and on 09-11-2021, exercising power under Sections 321(1)(i)(a), 314 and 436A(1) of the Act, the Corporation issued the impugned order directing its Officers for demolition of the construction undertaken by the petitioner, to be held on 19.11.2021. It is at that juncture, the petitioner knocked the doors of this Court challenging the said order.

6. Heard Sri Pruthvi Wadeyar, learned counsel for the petitioner, Sri Ashwin S. Halady, learned counsel for respondent Nos.1 and 2 and Smt. Prathima Honnapura, learned Additional Government Advocate for respondent No.3.

7. The learned counsel appearing for the petitioner would contend that the petitioner has on every occasion submitted application/replies to all the notices that are issued and the Corporation did not pursue the application submitted for grant of building license and have now invoked wrong provisions for directing demolition of the construction without at the outset determining, whether