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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER, 2022
BEFORE
THE HON’BLE MR.JUSTICE M.G.S.KAMAL
WRIT PETITION NO.5658 OF 2021 (LB - RES)
BETWEEN: SHRI.H.K.SATISH S/O KITTAPPA GOWDA AGED 48 YEARS R/AT, LAKSHMI RANGANATHA NILAYA, VIJAYANAGAR, 1ST CROSS, CHIKKAMAGALURU - 577 101.
…PETITIONER
(BY SRI.ASHOK B.PATIL, ADVOCATE)
AND: 1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF URBAN DEVELOPMENT,
VIKASA SOUDHA,
BENGALURU - 560 001.
THE STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF MUNICIPAL ADMINISTRATION
VIKASA SOUDHA,
BENGALURU - 560 001.
THE COMMISSIONER,
CHIKKAMAGALURU,
URBAN DEVELOPMENT AUTHORITY,
I STAGE, HIREMAGALURU,
RESIDENTIAL LAYOUT,
HIREMAGALURU - KADURU BY-PASS ROAD,
KALYAN NAGAR,
CHIKKAMAGALURU - 577 102.
THE COMMISSIONER,
CITY MUNICIPALITY,
CHIKKAMAGALURU - 577 102
B.C.NAGABHUSHAN
S/O CHENNABASAVE GOWDA
AGED 62 YEARS,
RETIRED MUNICIPAL COMMISSIONER,
R/AT, CDA LAYOUT, BY-PASS ROAD,
NEAR WATER TANK,
CHIKKAMAGALURU - 577 101.
SHRI.G.N.KRISHNEGOWDA
S/O LATE NINGEGOWDA
AGED ABOUT 58 YEARS,
ADVOCATE,
R/AT KOTE EXTENSION,
CHIKKAMAGALURU CITY - 577 102.
SMT.G.N.GIRIJA
W/O. K.NARAYAN,
AGED 69 YEARS,
R/AT 986, VIGNESHWARA NILAYA,
9TH MAIN, 6TH CROSS, II STAGE,
WEST OF CHORD ROAD,
BENGALURU - 560 086.
…RESPONDENTS
(BY SMT.M.C.NAGASHREE, AGA FOR R-1 & R-2, SRI.RAVISHANKAR A., ADVOCATE FOR R-3; SRI.A.NAGARAJAPPA, ADVOCATE FOR R-4; SRI.SATISH R.GIRJI, ADVOCATE FOR R-6; R-5 & R-7 -SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE APPROPRIATE WRIT, ORDER, DIRECTION QUASHING THE NOTICE BEARING NO.SUM/CMC/CKM/255/2014-15 DATED 20.11.2014 (ANNEXURE-G) ISSUED BY THE 4TH RESPONDENT AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING `B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present petition is filed by the petitioner seeking following reliefs:
"i) To issue appropriate writ, order, direction quashing the Notice bearing no SUM/CMC/CKM/255/2014-15 dated 20.11.2014 (Annexure-G) issued by the 4th respondent, in the interest of justice and equity.
ii) To issue appropriate writ, order, direction quashing the Notice-2 bearing no CMC/CKM/COMM.SHA/CR/224/2016-17 dated 17.02.2017 (Annexure-P) issued by the 4th respondent, in the interest of justice and equity
iii) To issue appropriate writ, order, direction quashing the communication bearing no. Na APraChiMa:C.Sy.No.401:2018-19/4731 dated 28.01.2019 (Annexure-Q) issued by the 3rd respondent in the interest of justice and equity.
iv) To issue appropriate writ, order, direction quashing the communication bearing no. Na CHI/SA/No.401:2018-19/5280 dated 27.02.2019 (Annexure-R) issued by the 3rd respondent to erstwhile owners, in the interest of justice and equity.
v) To issue appropriate writ, order, direction quashing the 'shara' bearing no. 'Nil' dated 24.03.2019 cancelling the Khata, inserted by the 4th respondent in the property tax register extract
(Annexure-U) in respect of PID No.4-3-24-KDA, in the interest of justice and equity.
vi) Pass such other order as this Hon'ble Court deems fit on the facts and circumstances of the case including the award of the exemplary costs in favour of the petitioner, in the interest of justice and equity".
The case of the petitioner is that he purchased a residential site measuring 358.34 Sq.Mts forming part of land in Sy.No.401 of Chikkamagaluru Village, in terms of a deed of sale dated 10.11.2010. That his name was entered into revenue records of Municipality of Chikkamagaluru. That the petitioner had applied for sanction of plan for construction of a residential building on the aforesaid property and same was granted by respondent No.4 on 30.05.2013. Petitioner was also permitted to install a bore well on the aforesaid property.
2.1 Respondent No.6 at the instance of respondent No.7 filed an application before respondent No.3 for conducting survey and fixing boundaries of the property on the allegations of petitioner encroaching their property and putting up construction without leaving set back.
2.2 Based on the said allegations, without any verification respondent No.4 issued notice dated 20.11.2014 at Annexure-G alleging that the petitioner has obtained the sanctioned plan from the authority by providing wrong information with regard to the width of the road on western road of his property and also by suppressing about the single site layout plan which was approved in the year 1984. The petitioner was thus called upon to provide an explanation. In the said communication respondent No.4 had also intimated that pending consideration, the building license would be kept under suspension. That the petitioner had issued a detailed reply to the said notice on 26.11.2014 as per Annexure-L.
2.3 Respondent No.6 had also filed a complaint against petitioner alleging the commission of various offence punishable under the provisions of IPC. The petitioner had submitted a representation on 19.02.2015 to the Deputy Commissioner, Chikkamagaluru, bringing to his notice that his building license was suspended by respondent Nos.4 and 5 at the instance of respondent Nos.6 and 7 and thus sought for intervention of the Deputy Commissioner to resolve the matter. Respondents Nos.4 and 5 yet again issued notice dated 17.02.2017 to the petitioner
making allegation of petitioner proceeding with construction by encroaching the road without even conducting any spot inspection and the petitioner was directed to demolish the construction as per Annexure-P. Petitioner has replied to the said notice as per Annexure-M.
2.4 That respondent No.3 without any basis issued letter dated 28.11.2019 as per Annexure-Q to respondent No.4 directing to suspend the khatha in respect of the property belonging to the petitioner.
2.5 That from the perusal of the aforesaid notices it was clear to the petitioner that the same was issued at the instance of respondent Nos.6 and 7. Respondent No.3 in the meanwhile issued yet another communication dated 27.02.2019 as per Annexure-R addressing the same to the original owner of the subject property, who had originally obtained the single site plan. An allegation was made in the said communication that the said single site plan was obtained on 18.09.2008 on the basis of wrong information and fabricated documents and the construction was being put up by the
petitioner by encroaching upon the road and thereby violating condition No.7 of the said single site plan.
2.6 Consequent to the said communication which ensued between respondent No.3 and respondent No.4, respondent No.3 issued communication dated 28.01.2019 at Annexure-S intimating the petitioner about temporary cancellation of the khatha of the property belonging to him. Petitioner sought for copy of the order temporarily canceling the khatha under Right to Information Act, as the petitioner was not furnished any information prior to passing of the order. Ultimately petitioner was issued with Annexure-U- property tax register which depicted the cancellation of khatha temporarily.
2.7 Thus, being aggrieved by issuance of aforesaid Annexure-G-notice suspending the building plan, Annexure-P second notice calling upon the petitioner to stop the construction, Annexure-Q not to maintain khatha till issues with regard to single site were resolved, Annexure-R cancellation of single site plan, Annexure-U cancellation of khatha temporarily. Hence, petitioner is before this Court.
Sri.Ashok B.Patil, learned counsel for the petitioner reiterating the grounds urged in the memorandum of petition submitted that; 3.1 All these communications and actions indicates that they have been issued by the respondent authorities at the instance of respondent Nos.6 and 7 in violation of all the principles of natural justice. That respondent-authorities who are vested with the statutory power ought to have acted judiciously complying with minimum requirement of issuance of notice calling upon the petitioner to show cause or hearing him before passing these orders. 3.2 He submits that manner in which respondent-authorities have issued these communications/notices without disclosing any reasons or circumstances leading upto issuance of these communications/notices have resulted in breach of statutory and constitutional right of the petitioner, as he is left without any efficacious remedy but to approach this Court.
3.3 Drawing attention of this Court to the various documents and communications, learned counsel submits that it is the pure case of malafide exercise of power by the respondent
authorities. He submits that the single site plan was issued as far as back in the year 2008, wherein on the western side of the property there is a specific reference to the existence of a road. That the authorities acting upon the same had approved the single site plan and also issued building license and permission to put the construction. That all of a sudden at the instance of the private respondent Nos.6 and 7 as referred to above, they started alleging that the petitioner had obtained said building license by playing fraud and deliberately suppressing facts. He submits that the communications/notices produced in the petition prima facie establish that the respondent-authorities were completely know how of the existence of 6 meters vide road on the western side of the property of the petitioner and it was thus not open to the respondent-authorities to make such allegations and put petitioner to untold misery and hardship.
3.4 Learned counsel for petitioner relying upon the following judgments:
"1) Sri.Nagegowda Vs. State of Karnataka & Ors., in W.P.Nos.3723 & 3753/2009 (LB-UC)
2) Dr.K.Somashekar Vs. Byatarayanapura City Municipal Council, represented by its Commissioner and Others, reported in ILR 2011 KAR 2460.
3) Mohinder Singh Gill and Anr. Vs. The Chief Election Commissioner, New Delhi and Ors., reported in (1978) 1 SCC 405
4) State of Punjab and Anr. Vs. Gurdial Singh and Ors., reported in (1980) 2 SCC 471
5) Mrs.Behroze Ramyar Batha Vs. Special Land Acquisition Officer reported in I.L.R. 1991 KAR 3556
6) A.V.Venkateswaran, Collector of Customs, Bombany Vs. Ramchand Sobhral Wadhwani and Anr., reported in AIR 1961 SCC 1506 (V 48 C 282)
7) Calcutta Discount Co. Ltd., Vs. Income-Tax Officer, Companies District I, Calcutta and Anr., reported in AIR 1961 SCC 372 (V 48 C 60)
8) Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Ors., reported in (1998) 8 SCC 1"
3.5 Relying upon the aforesaid judgments, learned counsel for the petitioner vehemently submits that case of this nature would not evince any credibility or confidence in the petitioner to approach the respondent authorities seeking redressal of his grievance. He also submits that though statute provides alternative remedy, since the petitioner is not kept informed as to
which of the authorities to be approached against the orders passed in Annexures-G, P, Q, R & U.
3.6 On the one hand, petitioner's building license is suspended and on the other single site plan which was the basis for obtaining the building plan has been cancelled. The authorities without there being any provision, have cancelled the khatha though termed it as temporary cancellation. The entire process of the respondent-authority has deprived the constitutional right of the petitioner to have and enjoy his property. Therefore he submits only forum available for him is approaching this Court under Article 226 of the Constitution hence, seeks for allowing of the petition.
Per contra, Sri.Ravishankar A., learned counsel appearing for respondent No.3-authority submits that all that the authorities have done is merely suspending the building plan and suspending the khatha. Suspension of building plan and katha would not amount to cancellation. He submits that Section 63 of the Urban Development Act, provides for an effective alternate remedy. That the case of this nature where allegations of fraud and
misrepresentation are made, same cannot be resorted to in a proceedings under Article 226 of the Constitution of India. Therefore he submits that the proper forum for the petitioner is to avail alternative remedy provided under the statute.
Sri.Naveen, learned counsel for respondent No.4 submits that Annexure-G was only a show cause notice calling upon the petitioner to show cause why building plan should not be cancelled. Instead of answering and replying to the said show cause notice petitioner has approached this Court expressing his apprehension without any basis. He submits that even now it is not late for the petitioner to show cause why building license should not be cancelled. He submits that khatha has been temporarily suspended and it is not a cancellation. Learned counsel also submits that there is an effective alternate remedy under Section 309 of Karnataka Municipalities Act, 1976.
In response to the submission made by learned counsel for respondent No.3, that Annexure-G is only a show cause notice and that the petitioner has not replied to the same, learned counsel for petitioner drawing attention of this court to the document at
Annexure-L submits that the said show cause notice has been responded to by providing details. That the petitioner had also brought to the notice of the concerned authority that the entire process has been set in motion at the instance of a private respondents with ulterior intentions.
Since the issue involved in this matter pertains to existence of a road on the western side of the property as claimed by the petitioner, this Court by order dated 31.10.2022 had directed learned AGA to furnish the details with regard to sanction plan to ascertain if the width of the road in question is 40 feet or 20 feet. In furtherance to the said direction, learned AGA filed relevant extract of revised master plan. Learned AGA referring to the said plan submitted that the road shown therein is on the northern side which is measuring 12 meters and there is no road on the western side as claimed by the petitioner.
Heard learned counsel for petitioner and learned counsel for the respondent-authorities and perused the materials on record.
It is not in dispute that the petitioner being the owner of subject property which formed part of Sy.No.401 had been issued with a building license and was in the process of putting up construction. It is also not in dispute that certain private civil disputes were pending with the petitioner and respondents 6 and 7. According to the petitioner at the behest of respondents 6 and 7, the respondent authorities have been issuing impugned communications/notices/orders. It appears that the averments, allegations and counter allegations made against the petitioner of he obtaining sanctioned plan and building license by furnishing wrong information and also suppressing material facts. As noted above, entire issue involved in this writ petition revolves around existence or otherwise of a road on the western side of the property of the petitioner.
While learned counsel for the petitioner refers to deed of sale of the vendor of the petitioner as well as deed of sale of the petitioner to buttress his arguments regarding existence of 20 feet wide road on the western side of the property, learned counsel for the respondent point out that even according to the description of
the property in the schedule to the said deeds of sale, it is only a conservancy lane and not road as claimed by the petitioner. Learned counsel for the respondent authorities referring to the revised master plan furnished by the learned AGA also point out that there is no road in existence on the western side and the only road in existence is on the northern side. All the communications/notices impugned in these proceedings refer to a purported layout sanction plan pertaining to land in Sy.No.401. The respondent No.3 along with the statement of objections has filed a copy of the layout plan and submits that the said layout plan is the one which the petitioner has not adverted to.
Learned counsel for petitioner referring to the said layout plan submits that the same pertains to land in Sy.No.345 while the property belonging to the petitioner forms part of Sy.No.401. He submits there is no availability of plan pertaining to land bearing Sy.No.401 and that the same is in the possession of the respondent authorities. Since all the correspondences and notices are based on and referring to the said layout plan, unless and until said layout plan is made available it may not be possible
to come to any conclusion with regard to the veracity or otherwise of the allegations being made by the respondent authorities regarding petitioner having suppressed or mislead the authorities in obtaining sanctioned plan.
Perusal of all the communications and notices impugned in this writ petition leaves no doubt that they have been issued suspending sanction plan, building license, khatha and also cancelling the single site plan. It is also seen before taking such step petitioner has not been issued with any prior notice. No reasons have been assigned by the respondent authorities before coming to the conclusion and the action taken thereunder. Reasons though assigned are cryptic and fall short of requirement of law and do not indicate application of mind and justification of the consequences that would follow from the consequences/order. The respondent authorities ought to have borne in mind that these communications/notices/orders are having effect of preventing the petitioner from possessing and enjoying his property. Therefore it was all the more important and imperative on the part of the
respondent authorities to have acted cautiously and strictly in accordance with law.
The Apex Court in the case of Mohinder Singh Gill and anr Vs The Chief Election Commissioner, New Delhi and others reported in (1978) 1 SCC 405 wherein at paragraph 8 the Apex court has held as under:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J in Gordhandas Bhanji: Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what be meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
While addressing the issue of legal malice the Apex Court in the case of State of Punjab and anr Vs Gurdial Singh and others reported in (1980)2 SCC 471 at paragraph 9 has observed as under: "The question, then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power-sometimes called colourable exercise or fraud on power and ofentimes overlaps motives, passions and satisfactions - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfillment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated: "I repeat……….that all power is a trust- that we are accountable for its exercise - that, from the people, and for the people, all springs, all must exist". Fraud on power voids the order if it is not exercised bonafide for the end designed. Fraud in
this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some objection which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action, malafides or fraud on power vitiates the acquisition or other official act."
Thus, viewed in the light of the aforesaid principles of law as rightly contended by the petitioner present case is a classic case of brazen violation of all cannons of principles of natural justice eroding confidence of common man in the functioning of public authorities.
As there is no dispute of petitioner being owner of the subject property, the question would only be with regard to the entitlement of the petitioner to put up construction in accordance with law. Since the authorities by the impugned communications have alleged petitioner having obtained the building plan by suppressing material facts, however without affording an opportunity of being heard, or giving any justifiable reasons as already noted above, the impugned communications/notices
requires to be quashed. Alternate remedy in the fact situation of the matter would be ineffective for the reason that while Annexures -G, P and U have been issued by respondent No.4 - Municipality while Annexures Q and R have been issued by respondent No.3 - Urban Development Authority. The effect of Annexures on the one hand is suspension/cancellation of sanctioned plan and on the other suspension and cancellation of khatha leading to anomalous situation. Therefore in the fitness of things this Court is of the considered view that the respondent authorities who have issued these communications/notices be directed to reconsider the case of the petitioner after affording him sufficient opportunity. Petitioner shall be entitled not only to give detail response but also is entitled to submit additional documents if any in justification of his claim.
For the foregoing reasons and the fact situation, following
ORDER 1. Writ petition is allowed. 2. Notice bearing No.SUM/CMC/CKM/255/2014-15 dated 20.11.2014 (Annexure-G) issued by the respondent No.4, Notice-2 bearing No.CMC/CKM/COMM.SHA/CR/224/2016-17 dated
17.02.2017 (Annexure-P) issued by the respondent No.4, Communication bearing No. NaAPraChiMa:C.Sy.No.401:2018- 19/4731 dated 28.01.2019 (Annexure-Q) issued by respondent No.3, Communication bearing No.CHI/SA/No.401:2018-19/5280 dated 27.02.2019 (Annexure-R) issued by respondent No.3, the 'shara' bearing no. 'Nil' dated 24.03.2019 cancelling the Khata, inserted by the respondent No.4 in the property tax register extract (Annexure-U) in respect of PID No.4-3-24-KDA, are quashed.
Petitioner shall appear before the respondent No.3 with regard to issue concerning single site development plan on 15.12.2022 at 3 P.M., on such appearance, respondent No.3 shall issue a fresh notice to the petitioner providing him sufficient opportunity to respond to the same. Thereafter on petitioner furnishing response within the time to be stipulated, the respondent No.3 shall consider the same in accordance with law and issue endorsement/orders as the case may be.
As regards suspension or temporary cancellation of khatha and building plan, petitioner shall appear before respondent No.4
on 16.12.2022 at 3 P.M., on such appearance, respondent No.4 shall issue a fresh notice to the petitioner providing him sufficient opportunity to respond to the same. Thereafter on petitioner furnishing response within the time to be stipulated, the respondent No.4 shall consider the same in accordance with law and issue endorsement/orders as the case may be.
All contentions of the parties are left open.
Sd/- JUDGE
GPG/SBN