YALLAPPA Vs. COMMISSIONER, BELAGAVI CITY CORPORATION

JUDGEMENT

(1.) In view of submissions of learned counsel for the appellant, office objections are overruled. This intra-Court writ appeal has been filed by the original writ petitioner, being aggrieved by the impugned order passed by the learned Single Judge in W.P.No.103496/2023.

(2.) The petitioner filed the writ petition being aggrieved of order dtd. 25/5/2023 at Annexure-U passed by the 1st respondent - Commissioner, Belagavi City Corporation. The impugned order was passed by the Commissioner invoking Sec. 288D of the Karnataka Municipal Corporations Act, 1976 ('Act', for short). It was contended by the petitioner that he being the owner of the immovable property, having acquired the same under a Registered Gift Deed dtd. 13/6/2018, he filed an application before the Assistant Executive Engineer, North Division on 28/8/2018 requesting grant of permission to put up a building. It is contended that since no orders were passed by the Assistant Executive Engineer, the plan is deemed to have been sanctioned. Therefore, the petitioner proceeded to put up the construction. However, the respondent - authorities started pestering the petitioner that a portion of the building is occupying the footpath and public street and therefore the petitioner filed O.S.No.1248/2019 on the file of the learned III Additional Civil Judge and J.M.F.C., Belagavi seeking declaration and injunction against the Commissioner, Belagavi City Corporation. It is stated that initially an ad-interim order of temporary injunction was granted and thereafter the same was vacated/rejected. The petitioner filed Misc.Appeal No.5/2020 before the learned Principal Senior Civil Judge and C.J.M., Belagavi and the appeal came to be allowed granting temporary injunction restraining the respondents from demolishing the structure. There was also a direction issued to the respondents that if at all they contemplate any action, it should be only after following due process of law viz., the provisions of the Act. Following the said directions, the respondents issued a notice dtd. 30/7/2022 to the petitioner and the tenants occupying the premises. The petitioner and the tenants approached this Court in W.P.No.102921/2022. The writ petition was disposed of directing that the notice shall be treated as a show-cause notice and the petitioner was permitted to show cause as to why the respondents should not proceed for demolition. Accordingly, the petitioner filed objections and the 1st respondent, without considering the objections passed the impugned order dtd. 25/5/2023 at Annexure-U directing demolition of the entire building.

(3.) Learned counsel for the appellant submits that although it was brought to the notice of the learned Single Judge that the respondents could not have invoked Sec. 288D of the Act, since the said provision is meant to remove any obstruction caused on a public street and not for demolition of a building which is put up on a property claimed by the petitioner, however the learned Single Judge has proceeded to accept the submissions made on behalf of the respondents that prima facie there appears to be no title to the property in question with the petitioner, since an unregistered gift deed is produced which does not convey any title. At this juncture, learned counsel for the appellant has drawn the attention of this Court to Annexure-L which is the registered gift deed dtd. 13/6/2018 which was registered in the Office of the SubRegistrar, Belagavi on 13/6/2018. Learned counsel would further submit that a plain reading of Sec. 288D of the Act makes it very clear that the provision is meant to empower the Commissioner to remove any obstruction caused on a public street, since no person is entitled to cause an obstruction on a public street and such obstructions can be removed by the Commissioner even without issuing notice to the person who has caused the obstruction. On the other hand, the respondents could have invoked Sec. 321 of the Act which is meant to take action against unauthorized constructions and violation of the provisions of the Act, Rules or the Building Byelaws.