A notice under Section 308 of KMC Act is not a substitute for a notice that is required under Section 321 (1) of KMC Act. A separate notice under Section 321 (1) of KMC Act is required to be issued as a provisional order which can thereafter be confirmed under Section 321 (3) of KMC Act if compliance is not made with the provisional order.

ORDER :

1. The petitioner is before this Court seeking for the following reliefs:

(a) Issue a writ of certiorari or any other appropriate writ, order or direction, setting aside the order of the III Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru Dated 30.11.2017 in Miscellaneous Appeal No. 86/2012 vide Annex-A confirming the order of the commissioner, Mangaluru City Corporation dated 14.09.2012 No. E4/BA 60/2008-09 vide Annex-B.

(b) Grant such other reliefs as this Hon’ble Court deems fit and proper in the circumstances of the case in the interest of justice.

2. The petitioner is challenging the judgment of the III Additional District and Sessions Judge, Dakshina Kannada, Mangaluru in Misc. Appeal No. 86/2012 by virtue of which the challenge made by the petitioner to a confirmatory order under Section 321 (3) Karnataka Municipal Corporations Act, 1976 (for short ‘KMC Act’) came to be dismissed.

3. The contention of Sri. A. Keshava Bhat, learned counsel for the petitioner is that:

3.1. There is no notice which had been issued to the petitioner under Section 321 (1) of KMC Act for a confirmation to be made in terms of Section 321 (3) of KMC Act, inasmuch as, the only claim made by the Corporation is that an earlier notice had been issued under Section 308 of KMC Act.

3.2. By relying upon the decision of this Court in the case of M/s. Happy Home Builders (Karnataka) Pvt. Ltd. and Others vs. Corporation of the City of Bangalore and Others, AIR 1990 Kar. 56 he submits that a notice issued under Section 308 of KMC Act is not a substitute for notice required to be issued under Section 321 (1) of KMC Act and as such, without issuing notice under 321 (1) of KMC Act, no confirmatory order under Section 321 (3) of KMC Act can be passed.

4. Sri. Hareesh Bhandary T. learned counsel for the respondent appearing for the respondent-Corporation, would however submit that:

4.1. The purport and intent of Section 308 and Section 321 of KMC Act is more or less the same inasmuch as the alteration of the work contemplated under Section 308 of KMC Act would also include demolition contemplated under Section 321 of KMC Act and as such, the notice issued under Section 308 of KMC Act would be sufficient compliance with Section 321 (1) of KMC Act. On that ground, he submits that the above petition is required to be dismissed.

5. Heard Sri. A. Keshava Bhat, learned counsel for the petitioner and Sri. Hareesh Bhandary T. learned counsel for the respondent appearing for the respondent and perused the papers.

6. A short question that would arise for consideration in this matter is whether, without the issuance of a notice under Section 321 (1) of KMC Act, could a Confirmatory Order be passed under Section 321 (3) of KMC Act and/or whether a notice issued under Section 308 of KMC Act could be said to be issued under 321 (1) of KMC Act?

7. Section 308 of Karnataka Municipal Corporations Act reads as under:

308. Power of Commissioner to require alteration of work:

(1) If the Commissioner finds that the work:

(a) is otherwise than in accordance with the plans or specifications which have been approved.

(b) contravenes any of the provisions of this Act or any rule, bye-law, order or declaration made under this Act, he may by notice require the owner of the building within a period state either:

(i) to show cause why such alterations should not be made.

(ii) to make such alterations as may be specified in the said notice with the object of bringing the work into conformity with the said plans, specifications or provisions.

(2) If the owner does not show cause as aforesaid he shall be bound to make the alterations specified in such notice.

(3) If the owner shows cause as aforesaid the Commissioner shall by an order cancel the notice issued under sub-section (1) or confirm the same subject to such modifications as he may think fit.

8. A perusal of the above would indicate that the Commissioner, if he finds that the works carried out are not in accordance with the plans o