At, High Court of Karnataka
By, THE HONOURABLE MS. JUSTICE JYOTI MULIMANI
For the Petitioner: T. Hareesh Bhandary, Advocate. For the Respondent: -----
(Prayer: This writ petition is filed under Articles 226 and 227 of the constitution of India seeking certain reliefs.)1. Sri. Harish Bhandary learned counsel for petitioner has appeared through video conterencing. The respondent is served and is unrepresented.2. The respondent is the owner of property bearing R.S.No.26-12 of Kankanady ‘B’Village. Since she had put unauthorized construction on the terrace of the building, the Mangalore City Corporation issued a notice on 17.01.2011 under Section 321 (1) (2) of the Karnataka Municipal Corporations Act 1976 (‘the ‘Act for short) for which the respondent submitted her reply on 25.01.2011. In the meanwhile, the Town Planning Officer of the Corporation issued a notice on 21.04.2011 informing the respondent that the explanation offered by her is not satisfactory and that she was required to remove/demolish the unauthorized construction put up by her on the terrace of her building. As against the notice, the respondent preferred an appeal under Section 443 (A) (i) (ii) of the Act before the District Judge, D.K., Mangalore in M.A.No.17/2011.The Corporation contented that no appeal would lie since the notice issued by the Town Planning Officer is not a confirmation order under Section 321 (3) of the Act. It is stated that the provisional order was confirmed under Section 321 (3) of the Act on 25.02.2012. The District Court allowed the appeal on 12.03.2014 and set aside the notice dated 21.04.2011. It is judgment which is challenged in this writ petition on various grounds as set out in the writ petition.3. Learned counsel Sri. Hareesh Bhandary. T vehemently submitted that the trial Court could not have been decided the way it was. The order passed by the District Court is unsustainable in law.Learned counsel strenuously urged that the appeal filed by the respondent is not maintainable under Section 443-A of the Act.Next, he submitted that the construction made by the respondent is unauthorized since she has not taken any permission from the Corporation. Therefore, the Corporation was constrained to make provisional order under Section 321 (1) (2) under the Act are legal.A further submission was made that during the pendency of the appeal. Corporation has passed the confirmation order under Section 321 (3) of the Act. No appeal is filed challenging the said confirmation order. Under the circumstances, the order passed by the District Court with the observation to drop all proceedings is illegal.Lastly, he submitted that the judgment of the trial Court is liable to be quashed.4. Heard the contention urged on behalf of petitioner and perused the pleadings and annexures with care.5. The short question which perhaps requires consideration is whether the appeal filed by the respondent under section 443-A of the Act is maintainable?6. The contention of the Corporation is that the respondent has put up unauthorized construction on the terrace of the building in R.S.No.26-12 of Kankanady ‘B’ Village. Therefore, Corporation was constrained to pass provisional order under section 321 (1) and (2) of the Act on 17.01.2011 seeking explanation from her. The respondent submitted her explanation on 25.01.2011 standing that since there was a leakage in the terrace of her building and to prevent the same, she has put up the construction.Contending that the explanation offered by the respondent is not satisfactory, the Town Planning Officer issued a notice on 21.04.2011. It is relevant to note the respondent challenged the notice issued by the Town Planning Officer before the District Court which was originally numbered as M.A.No.01/2011 and subsequently re-numbered as M.A.No.17/2011.Before the trial Court, the Corporation contended that the appeal is not maintainable. In this Court also, the Corporation adhered to the contention that the appeal filed by the respondent is not maintainable. In fact, a very detailed and effective argument was put forth before this Court by counsel for petitioner regarding maintainability of the appeal.It would be reievant to extract Section 443-A of theAct which reads as under.“443-A. Appeal to Karnataka Appellate Tribunal or District Court.- (1) Any person aggrieved by any notice issued, action taken or proposed to be taken by the Commissioner under sections 308, 321 (3) may appeal,-(i) to the Karnataka Appellate Tribunal in case of the [Bangalore Mahanagara Palike;](ii) to the District Court having jurisdiction in case of other corporations.2. The decision of the Karnataka Appellate Tribunal or as the case may be the District Court shall be final.3. All appeals made against any notice issued or other action taken or proposed to be taken by the Commissioner under sections 308,309,321 (3) and pending before the standing committee on the date of commencement of this section shall stand transferred to the Karnataka Appellate Tribunal, or as the case may be, District Court and such appeals shall be disposed off by them as if they were filed before them”Having noticed the aforesaid provision and applying the same to the facts and circumstances of this case, evidently the appeal filed by the respondent before the District Court is not maintainable. Since what is contemplated under Section 443-A of the Act is filing of an appeal as against the action taken under Section 321 (3) of the Act.It is significant to note that the Corporation issued provisional order under section 321 (1) and (2) of the Act. The respondent has challenged the notice issued by the Town Planning Officer under section 443 (A) (i) (ii) of the Act before the District Judge Mangalore in M.A.No.17/2011. And during the pendency of the appeal, the Corporation issued confirmation order under Section 321 (3) of the Act on 25.05.2012. The respondent has not filed appeal challenging the confirmation order. Therefore, the ap
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peal itself is not maintainable.The trial Court as is apparent from the proceedings, has not dealt with the maintainability of the appeal. Learned Judge proceeded to consider only the notice challenged in appeal. In my considered view, there is no possible excuse to look into the same. The non-consideration of same has occasioned grave injustice.Therefore, I have no hesitation to say that the order passed by the trial Court is liable to be quashed.Accordingly, the writ petition is allowed. The judgment dated 12.03.2014 passed by the I Additional District Judge, D.K., Mangalore in M.A.No.17/2011 at Annexure-A is quashed. No order as to costs.