MAHIBOOBSAB Vs. CHIEF OFFICER TOWN MUNICIPAL COUNCIL KERUR

JUDGEMENT

(1.) THE petitioner in this petition claims to be the owner of property bearing No. 171/2 of Kerur Village, Badami Taluk, Bijapur District. In this petition, he has called in question the correctness of the order dated 31st July, 1992, a copy of which has been produced as Annexure-J passed by the 2nd respondent. A few facts which are not in serious dispute that may be relevant for the disposal of this petition may be stated as follows:

(2.) ON the application filed by the petitioner for grant of licence to put up a building in the property referred to above, the 1st respondent had granted a licence to the petitioner on 1st June, 1992, a copy of which has been produced as Annexure-E. It appears that the Headmaster of a school situated adjacent to the property, raised an objection and moved the 2nd respondent to nullify the resolution passed by the 1st respondent granting licence to the petitioner to put up the building. On the said objection raised by the Headmaster of the school, the 2nd respondent has passed Order-Annexure-J suspending the resolution passed by the 1st respondent granting licence to the petitioner to put up a building (establishing a complex) on the property in question.

(3.) SRI Hebballi, learned Counsel appearing for the petitioner in support of his prayer that the impugned Order-Annexure-J is liable to be quashed made two submissions. Firstly, he submitted that the impugned order having been admittedly passed without hearing the petitioner and giving an opportunity to the petitioner, the same is liable to be quashed on the ground it came to be passed in disregard of the principles of natural justice. Secondly, he submitted that the impugned order is liable to be quashed on the ground that the reasons given by the 2nd respondent to suspend the resolution passed by the Municipal council granting the building licence to the petitioner to enable him to put up the construction on the property in question are totally extraneous and irrelevant for exercise of the power conferred on him under sub-section (1) of Section 306 of the Karnataka Municipalities Act (hereinafter referred to as 'the Act' ). Sri Hebballi, learned Counsel appearing for the petitioner pointed out that from a reading of sub-section (1) of section 306 of the Act, it is clear that if the 2nd respondent is of the opinion that the execution of any order or resolution of a Town Municipal Council, or the doing of anything which is about to be done or is being done or on behalf of the Town Municipal Council, is in favour or is causing or likely to cause injury to or to lead to a breach of the peace, the 2nd respondent by order in writing shall suspend execution or prohibit the doing of such an act. In the impugned order, he submits that there is no such finding recorded by the 2nd respondent and therefore he submits that it was not permissible for the 1st respondent to suspend the resolution passed by the 1st respondent granting building licence to the petitioner. He further pointed out that the 2nd respondent on the basis of the report of the Assistant Commissioner which was not made available to the petitioner and without giving an opportunity to the petitioner to have his say on the said report passed the impugned order. He further submitted that the 2nd respondent appears to have taken collateral consideration to pass the impugned order because the petitioner has approached the Civil Court to protect his property rights.