PARVATHI BAI Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) In this petition under Articles 226 and 227 of the Constitution, the petitioner has sought for quashing the provisional order dated 20-51-983 issued by the Assistant Executive Engineer, Frazer Town, Bangalore City Corporation, under Sub-section (1) of Section 321 of the Karnataka Municipal Corporations Act, 1976; and also the Order passed under Sub-section (3) of Section 321 of the said Act, by the very officer, produced as Annexures A and B respectively.

(2.) It is not in dispute that the alleged unauthorised construction which is directed to be demolished is a touring cinema theatre situated in Survey No. 13/1 of Gangenahalli-Divison No. 46.

(3.) In The Commissioner, Bangalore City Corporation v. Sangeeth Theatre & Anr., WA No. 1515 of 1885 D.D. 30-8-1985 it has been held by a Division Bench of this Court as follows : "The only question raised in this appeal is whether the proviso to Section 304 of the Karnataka Municipal Corporations Act, 1976 is attracted to construction of a building for the exhibition of cinematograph films. 2. Learned Single Judge has observed that in view of Section 11(2) of the Karnataka Cinemas (Regulation) Act, 1964, the aforesaid proviso to Section 304 has no application for construction of a building for the exhibition of cinematograph films. We have perused Section 11(2) of the Karnataka Cinemas (Regulation) Act, 1964 and Section 304 of the Karnataka Municipal Corporations Act, 1976. In our opinion, the view taken by the Learned Single Judge appears to be correct. 3. Section 11(2) of the Karnataka Cinemas (Regulation) Act, provides : "11. Construction or re-construction of buildings or use of places for exhibition of cinematograph films only to be made after obtaining permission of licensing authority. xx xx xx (2) No provision contained in the enactments specified in the schedule or any other law for the time being in force regulating the erection or construction of buildings, or in the rules or bye-laws made under any such enactment, or law shall apply to an application under Sub-section (1) in so far as such provision relates to any of the matters specified in the said sub-section." The City of Bangalore Municipal Corporations Act, 1949 has since been repealed by 1976 Act. Mr. Castelino therefore submits that since the Karnataka Municipal Corporations Act, 1976 is not in the schedule, the applicability of the proviso to Section 304 cannot be ignored. That contention would have been sustained provided if Section 11(2) merely mentions 'the enactment specified in the schedule.' It, however, further states -- '........or any other law for the time being in force regulating the erection or construction of buildings, or in the rules or bye-laws made under any such enactment,'. It thus excludes any other law for the time being in force. It is not in dispute and indeed it cannot be disputed that the 1976 Corporation Act, is a law for the time being in force. The applicability of the Jaw also stands excluded by Section 11(2) of the Karnataka Cinemas (Regulation) Act, 1964.