IN THE HIGH COURT OF KARNATAKA. BAN
DATED THIS THE 9,02 TH DAY or ocT0BE11_....,"2bV"1éi'»VJ.A. K
PRESENT
THE I-ION'BLE MR. JUSTICIS>A'V';G..&S1'1 B}{IA I*x;vET£'
AND
THE HoN'BLI: MR.JUsT1cz~:L E,
WRIT APPEAL 1%.i310'5/2002(viv..i%+.fiEs)
BETWEEN :
1. 13.0. Chandrajfipa; _ §
Aged about!43 ye':-a:1"s. K "" "
2. HR. Visha.1ai.:$:harri'maV '_ *
W/053*; Qfj;'ar1(f:'£.;ap;ja..»
Aged about yjealfs .
3. B.C. Gcvgfha ' ._ .A _
D/0. B.C;--..Ch.and1'appa«...
Aged about 2.SVy'ea1's
_ A AI]' a1¥é'A1'eVS}'.di11g 14, E Cross Kirloskar Colony,
' {PO31..QffiC'C._ROa7d, Mahalakshmipuram, Ba11ga1ore.86.
... APPELLAN TS
(By Sn: shekar Shetty, AdV.,]
AND :
1 . State Of I{arI1aiaka
By its Reveime Secretary
Vidhana Soudha. BE'LI1gE11OI'€'"O1
2. The ASS1. Commissioner
Bangalore Sub division. Bangalore
3. The AdDTiI1iStrat.O1',
Peenya Group Panchayat.
Bangalore North Taluk. _
4. Laxman Uchclaai.
Aged about 58 years,
8/0. A. Veerappa,
N. 10/106. I CI-osst» :5 _ . ;
11 Stage. Kirloskar CO10ny,"j' '
Ma}Ia1axn1ipurarrl..V.~'~ . -
Bangalore: éi-'~6_ V Vf
. RESPONDENT5
IP.y”S’irI’A:.:S,. for R1–R3. M/S. Holla
&7.Ho1_l2L for __ — ~
‘ITIIS=jwRIT__ AAPPEAL PILED U/S 4 OF THE
KAi~<I'\U–\_TAKA'-»Ei1G'I-i COURT ACT PRAYING To SET ASIDE
'i'H'};?.. _()RI')I+ZR" -I2ASSEI) IN THE WRIT PETITION
,NoI3sI"1I"/*~1_993 DATED 13-2-2002 AND ALSO SETASIDE
» _AN.NEXURZF1; _'G' TO WP. PASSED BY SECOND
'I._zESPONiDE.NTi.IN V.P.C. APPEAL NO.4/1993-94 DATED 9-
" 99-1.993;
‘l”‘iI’I’IS’AP’P’EAL HAVING BEEN HEARD AND RESERVED
POR”OR_DI:«:RS AND COMING ON FOR PRONOUNCEMENT
A “GE JU’DoEIvIENT THIS DAY SABHAHIT J, DELIVERED
_ TI’_I»iE* P’OLI.OwINo:
J U!) GMENT
This appeal is fiied by the petitioner Nos. 1 t,Q””3p in
W P N0.381i1/1993 being aggrieved by
13.2.2002. wherein the iearned Single
Court has deeiined to interfere
the second respondent i1):_W .’P,.’7w
Commissioner, Bangalore S’L’ib.,:._V’DiVisit5r1, :_uB’ar1galore in
VPC Appeal N0.4/ perhiftnnexure
‘G’ to the Writ Petition an_ci_dishfiissehdvVth:ei_Writ Petition.
2. of the case Ieachng up to
this with=..fe_feret1ce to the rank of the parties in
Pettition before the learned Single Judge, are as
foiiowsz V’ ”
It is the ease of the petitioner Nos. 1 to 3 in the
Writ Petition that first petitioner is the husband of
second pet:itioner and third petitioner
daughter. First petitioner purchased
under sale deed dt.26.8.1.987 from
Varnan Naika as per Annexure ‘A7 to”t~he1Writ.–‘Peti.ti–on{.i
Second petitioner acquired “sit’e._No.A1’4Vas per 19_iI1’E1€Ifl1I’€ * V
‘B’ to the Writ Petition on d.i_s;’s’o11;:tion.’oi” ~.partnership
deed and site No.14- Akfas ..:s:ec_ond petitioner
by Ma1leswararn:”‘f’ailo;’iVng’ ‘ tive-.2 Society Limited
as per W’ri_t”Petition. Thus site Nos.
13, I4 .14-AV aVtfee_iad}iace.:1t to each other. altogether
irieasuriiig d°i:Q_O”X5’4’,h=_ sittiated at Laggere village in
B€i1’1§{&l}01’€ district. First and
‘s.e’eo_IidA _peti’tiio:_1ers constructed the ground floor after
obtaiéning . _” the permission Licence from the
3″”««._’VAdministrator of the Viilage Panchayath. Thereafter,
« e:.t.i1e3r.1e21sed the open terrace of the Ist floor to the third
petitioner M daughter of first and second petitioner to
construct: the 1st. floor, 2″‘ floor and the 2″” floor”—as a
x
Kalyana Maratapa as per Annexure ‘D’
Thereaft.er. the third petitioner gave power__oi’..at,to1=neyto _&
first petitio’ne1″. Plan was sanction for the”«co’nstru.ctio’n of
the Kaiyana Mantapa and;I._.icen'(r–e was aisles o’otai’ned,W
though it was not necessar3t’t’i’tot’put ti’p.c’o1istr1,;ction in
respect of the lease petitioner in the
area rneasuring 60’X5Q*_ itheav”1\.:’..’CrV’oss. Kirlosker
Colony, pf ti}-‘}o’aCi:, Banga1ore–86.
Cor1st1’t1tctiorj;i:,of I<.a1"yana."'ivia'ntapa was undertaken
as perzthe.san-ctior;Vand Licence. Respondent Nos.
4 and 5 VW3rit:"vPeti.ti0n and another petitioner by
%M.N~.C. Ij19s""beir1;g aggrieved by the grant of the
and Licence cit. 10.6.1992 for
con!st,rL1c.tio§.1,-1'of Kalyana iVIantapa, filed W P No.9348/93
on thevfile of this Court and the said Writ Petition was
of at the stage Wreliminary hearing by
holding tliat effective remedy is provided _i,ii1de1*
SeC.58(4} of the Kariiataka Village Panchayats
_(.'
Boards Act. 1959 [hereinafter called as '
iQl'" K
brevity} and the petitioners have-iarr.alte'rneitive'4_reInedj#g
of filing the appeal before the
challenging the very sanctioii..pia.n iiriputgneldvf Writ
Petition and it: is equally open""to'Vp_:thVe-»_petitiori'ersVito seek
appropriate interim being the
position, and and
efficacious hrippeai. This Court
declined jurisdiction of
this Court of the Writ Petition
by observing is filed within a period of
tivo«–.wee'I;s order 1.6)., 1.4. same
i. of on merits regardless of the
1'=~liI1'1ita[i(J..l;41 a11d.all;.«tfhe contentions are kept open.
\
3'. It is the further case of the petitioners that
in the meanwhile, after the dismissal of
Petition, a person was set up for fiiing the.–A4s:ni1:,.T:"Since "
no interim order could be obtained in the st1it,'4th'e__s.ui't.,
was not pursued and thereafter,t"Or:igi1'ial St;it~.was .fiie'dV._
in 0.5. No.2712/93 by petvitioneri the 'V V
third respondent in 'and"V3inte1'irn
injunction was respondent.
from interfering viwithw the Kalyana
Mantapa Sec.2OO of the
1959 Assistan_t.'”Commissioner — second
respondent.’_herein.” as V.P.C. Appea1~4/93~94
and an 1’nte1’~.i1r1 order’–._of’~’stay of the sanction order was
~grantedgpinitiaily in”‘ti”ie said appeal. Thereafter an order
injtinctioii granted in OS. No.2712/1993
was.__’p1*odui:-;’eVdi and interim order stood Vacated. The
{“2-‘..__”second”respondent passed the finai order as per
‘G’ on 9.9.1993 which reads as foilows:
“=.\9;3,’E’:i
8
“For the reasons stated above, under
sectionsm 53. 54, 60 and (X) of the Ka.rnai.al_<__a.
Panchayath and Local Bodies Act, l9594,.._V[~l_]y_
cancelled the licence which was said to be.~i~ss_ue'd , A'
to construct IS'-, 2"'? and 31"' floor over site' 3
and 14 of Laggeri village, decidingéthatditydé
issued according to rules.
[2] And also caiicelled theliiience’dvgraénted u
by the Peenya grama Panchayath~ .i_n”Autéivo1;irVVV0f
Kumari Geetha, torfun thee-Ktalyana Mar1t»ap..5§
(3) sill-7e,enya grama
Panchayath__to building
Constructed”e1j’r:roai_chi11:g feet road at
the fgf and 14 under
section Grama Panchayath
and ‘Local it ”
vii’; of the business run1’1i1’ig
LJsha”?ivm.l3«e1’s, as no already the Pollution
, taken action, hence this authority
not found suitable, therefore. the
llgrétmzl Panchayath about: the pollution
cor~1t.rel matter, can take final decision and after
it “the Plantthayatih can take action by cancelling the
we
9
licence not to cause trouble to general public or
it can renew t.he said licence.” .
Being aggrieved by the order passed by the’…seco~:_1d
respondent on 9.9.1993 as referred to
Petition was filed by the petitaioiiers 1 to”3″ 9″‘
Petition contending that the Assistant lfloniniisslionleri
had no Jurisdiction to e1″l.i.€~:?..t'<1in""tTy1t'i _&il?De?l1'~ .u1'1der = 9'
Sec.200 of the 1959 Act. It .contended.that§ though
1983 Act namely. Karha.taiai§–'pziii5;;l_ ..l;':'arishads, Taluk
Panchayats, Saini._this:;Adill/laridal'-.lParichaytath and Nyaya
Panchayats come into force, the said Act
was not given' e.ffe(,»–t::l""_tol in Bangalore District by
notification dt.~ .._Vl:iv21-1'5 :August 1985 and the area in
.qiiestioVnwi.wais'*~-goveriied by the repealed Act, 1959 and
not applicable. No appeal can be
_p entelrtairied the second respondent. against the order
bypassed the Administrator as appeal can be filed only
la
10
before the I_)eputy Commissioner and the administrator
had no jurisdiction. No appeal lies against the order
passed by the Administrator. It was also covntend.ed
that the order has not been passed
opportunity to the petit.ionei’s__t.o__ s’ubsta1’1–tiate’w if
Contention and that the appe1′:iat.ef_”aiiithiorityil
passed orders in aeco1’danCe__With law.’ It_isv.aVei*’1*ed”that ” V
kalayana mantapa was oon,s:t’ruet;ed after obtaining
sanction plan and Lieenee in with Iaw and
there is no eneroa._chrr1ent; is pending before the
Civil Cv:’;’i,ii*’i;;A_;Therefoi*e’;~,VVt-he passed by the second
respoiideaiitwas vt.:di”be.–~set aside. Respondent Nos.
1 to 4} didfiaot file. air_1_y'”objeetion statement. However,
xNo.S”f1’ied the objection staternerit to the
AVa\”(ei*ring that the averments made in the
writ__ petveit;i0″n, ‘was false, frivolous. Vexatious and not
~ “~mai11tai.nabie either in law or on facts. The order passed
second respondent in the V P C No.4/93434 (it.
by
11
9.9.93 produced at Annexure ‘G’ to the Writ Petition has
been passed in accordance with law under 1959 Act
since 1983 Act: is not applicable to the prope-rt’y_i”–i_n
question and the second respondent has4″:*poi\2sfe’:.4S*~ ‘
suspend execution of orders €fC::’,’ of }??anch’ayats_’an”d.
Taiuk Board if in his opinion the”«execu’tior1. ¢{1″..ar;y
or resolution of a panchaj}at:h~.._or Taluk.Boai=d'”‘or”:any it
other authority or Of!ice1’ Panchayath Taluk
Board or the doing oi”aijyti1i.rig about to be
done or being done Panchayath or
Taluk ~Board”i;is “‘i?1i1jiiet’;” unulawful or improper or is
causingor.1s’1i.keiji~tovcause injury or annoyance to the
publicor foiead. aA’brVe~a:ck1 of peace be may by order in
“*.,_wi’iting;p_.u11dei’ h’is””‘sigVnature suspend or prohibit the
“Notice was given to the writ petitioners
and éLftev1’.heari11g the counsel appearing for the parties,
“-second _1’_éSpOnd€I1f, has passed the order in accordance
A “”wii’h_iie1Vv holding that the appeal is rnaintainable and
1.}
the Licence for construciiion of kalyana mantapa could
not have been granted. There is encroachrnent on__ the
public road and wherefore, the order paSSCd”:Vb:g;””‘*t;F£€
second respondent is in accordance with u
not call for iiiterference in the wrif”p’e–ti.tion in _ex’e1’ci’se of
the writ jurisdiction of this Con_’rt’–_lV_a’ndlisought
dismissal of the Writ Petitionfifi.
4. The learned considering
the C0nt€nti0}fi”:’»f1l;h€ for the parties
held that before the second
i~espondent._ ‘:.iiiai11t_§*[ifliam.ble as 1983 Act was not
applicable the in question where kalyana
is~.situate”d”‘and the same is governed by 1959
Act,”Whe.i’ei’oi=eQsecond respondent was competent t.o
enteitairi revision and after detailed consideration of
mat.eAi*ial on record, has rightly held that no Licence
j “o’r*.,s_a’nctio11 has been granted for construction of
kalyana mantapa in a residential area and there is
encroachment as held by second respondent.
VVhe1’efore, the o_1’der passed by the second resIp’ofid.ei1t
is justified and does not call for intert’ere11cefin V’
of the writ jurisdiction of this Cotnft
dismissed the writ petition.
order of the learned Singieidddge Writ it
Petition this appeal is ,-filed ij’etitione’r”No’s. 1 to 3
in the Writ Petition.
iiii learned counsel
appearizngii «for — and the Government
AdvoC_a_te A’for””.1″espo11dent Nos. 1 to 3 and
“V'”vcou’raseI..j-~.appeariiig “” “for respondent. No.4. Originai
;e:;grdAs._a;;c: vtheapptéal pertaining to the Case have been
p1’od.4u.ced learned Goveihment Advocate.
W?
14
6. Application has also been filed under Order
XLI Rule 27 CPC to produce additional documerits for
eoilsideratioii in this appeal.
7. Learned counsel appe’afirig. fa-pp¢11a’nt’se
has taken us through the provisi’otis*–oif Seoti_ons
200 of the 1959 Act and alsovi.le:i’he Iiotifieation by A
the Government, exti}t;1di11g”‘lthe:’ llappiicaljilityl of the
provisions of the District and
continuation §.o’i”«.tfie ./–‘§drnis.i.~istrat’o1f~ submitted that
second.””fe’spohdenft° could notllllhave been entertained
appeal or revision’j_i’a1*1d.__lWherefore, the order passed is
w11o1Iy_Vwit:houV_t jvL117’-isdictioii and o1*de1* has been passed
affordingv'””o15portuI1ity to the appellants to
t.Eje.ir case and the relief that is granted by
the».sec0nd:fesnpondeiit is also beyond the relief that was
l.”~’««.__l”»sought in the Appeal as what was sought for in the
” ‘appeal was directilig not to inaugurate kalyana
mi;
‘fit
17
Planning Act, 1961, is pereniptory, wherein permission
for land developrnent is mandatory and authoiiiiiyjfoi’
grant. of Change of land itself is the
Commissioner under See.95 of the
Revenue Act. He has also relied Linen. the d_e:Cisi.Von
the Hon’ble Supreme Court; in thle–Ae’a–se
SHARMA vs. MANAGING COl\/1lI:\’/iIfi*1″i<3E, DR- HAR1 RAM too»
EDUCATION) HIGHER vsi3c:o1~}'3i§Ai§Yi.sr§fiooL ms OTHERS
reported in (1993) 4 SCv_(v3_1.Q ith-at when there
is violation of"t}ie;jfirinleipiesgof"n:at–n'1*a.i..justice. the order
is liable-"to rernitlted to the authority to
decide in iaiiv. The order is void and
liable to be. set,vasié:!e."~~*"VThe learned counsel further
tlh'e"*'fot1rth respondent along with others
nef:.i¢ici;'i:i7té::310.9348/93 before this High Court to
caneel thelisanetioiied plan and licence and the same
Wearne to_A'be dismissed. Thereafter suit has been filed
the second and third respondents by the third
Wig
I8
appellant. herein and order is seized by the Civil Court.
Wherefore, the order passed by the second i'espoiIdent.
is liable to be set: aside and appeal may be
setting aside the order passed by the
Judge and the order passed
as per Annexure 'G' to the W1'_i_t Pet'it.io'n.
9. The learned.”seniT_or ic.o”un_sel«appearir1g for the
fourth respondent submitted ffhevsarlction plan and
Licence is gra__nte}3.»i’iri.tl1e :’:1arneVo.f’thue”fi’rst petitioner and
never in “the. _1′:amé}: of t.l<ie"third'petitioner who according
to the V"first._ and 'suecoridllipeititioners, was authorised to
put up con'sti*ut.:iVi'o11A'rand the authority could not have
A.sa11ctioh"pIa11 and Licence for construction
_ofKalygtnyaivll/Iari.t,apa1 in a residential area and there is
of public road while putting up
ll."~=.___V'~eonstrti.c_tion of the Kalyana Mantapa. Even though the
it Mantapa. is put up in a portion of the property
W
19
belonging to the first and second petitioners and the
order passed by the second respondent is based.”–z.1po’n
the sanction made to the petitioners. To sg.b’etlant:ti.a’t;e
their case, they had engaged the Couneel
Counsel argued the matter before thesec;-ond res-pond*ent.
and all the Contentions have b¢ent’c§nsid¢_~;¢d
order passed by the second resur)onde1it:_ isjiistiified.
10. Learned senior a’jpi)lE:aring for the
fourth respondlenlt’ futtliczr in view of the
fact that°’ordler t):aSse’d.«:.i11 Wf’p”No.9348/93 which was
dismiseed on alternative remedy, it. is not
open _v to ._a–ppte._1la1*its herein to contend that
‘ll’~._21I3’};)é&1l:((.1’€\%1SlOI1HWa’S’lHOE maintainable and appellants
_ were eeteopped from contending that provisions of
A(1l.i:l:l.E$llI10f. applicable. However. Licence and
sariction} plan had been granted under the provisions of
Act only and not under 1983 Act. as provisions of
20
Sec.’i983 Act was not applicable. to Bangalore District.
The decision relied upon by the learned ttotinsel
appearirig for the appellants is not helpful
the present. case.
1.1. Learned GovernmentdtA.dVocate”ap§)’earing for”
the respondent Nos. 1 t.o 3
order passed by the hast’
produced the original ifecolrds'<.__pertaini_1f1g_i§ to the
proceedings for the
'l =t'h'ee._:l'ea;rned counsel appearing for
the appelio__nt2s that the order passed by the
se..co:nC;l__LV' respo1'1tle.n.i.« is Without jurisdiction. Kalyana
l\/lantéifiai ~–._out up after obtaining the sanction plan
and Licenccvll and construct.i011 was not illegal and there
is no*en':croacl'1Inent and even assuming that appeal was
!1"i2ii'i;1t:ai11able under Sec.2OO of the 1959 Act. the second
21
responcient could not have cancelled the SE1I1Cti()1’1 plan
and Licence and he could have only suspended the
Licence and I’€f(;’.l’1′(“3d the matter to the Con2rnissi0\1n,e’r_Vt0
take action in accordaiiee with law. Whe:e§t’Ore’1’f~–é3}?e:j”_
assuming that the appeal was inaintairzahle'”=.unVdesr
Sec.200 of the 1959 Act, the prheeduife
second respondent is iilegai and ea.nh0Vt sustairied. , *
Vifherefore, the learned Si11g1e_t:2Jt1_d-ge otjghtivnto have set
aside the order passedhy _ the ifespondent which
is impugned inthis W1’i-t..App-eAa1_ the Writ
Petitionf =
tWe”}’1aVV.e givieii careful Consideration to the
‘vV”‘vC01″i-V*.,.(:3Sf1’f;i£)I1«Of tl1e””‘ie;éu’ned COul1S€1 appearing for the
e__;_)¢”Lrtti’es se:tit.i1’1ised the material on record.
I’?1,__A«* The material on record would eleariy show
_?ace0rdi1’1g to the avermeiit made in the Writ
22
Petition. first petitioner purchased site No.13 under
registered sale deed (it. 26.8. E 987 as per Annexure ‘A’ to
the Writ Petition from Manjunath.Van1an Naik. _ItV_lis_:Pt.he
further ease of the first and second pet.iti0_n:ers” .
and second appellants herein that. seeond-:’jap’pell.ant
acquired site No.14 under Anr;.exLi_’re’iV
Petition which is a deed ‘pe’1~’ta111in’gV to clil1vsso’lu.t1C~n off’
partnership and the ;__seco11d…_a:ppelI_anth’Wasp apipartner.
Unless there is a sale’ ‘c’1eeti1e._o:,rpi.ari3Ia.V:l_titleconveying the
property in si.tejNo_. 1-4:: t,I’ie’r:seeond appellant,
dissol}1t,i’onw Pw.o:t1ldPnotVlve0nfer any title. The
material. on ,further show that so far as
site Vl\lo.14l}°= CV{):11Ce(;l’ll€t:ClV1, which was allotted to the
V’ .,seeoncip’appellant’Aby”Ma1leswararn Tailoring Co-operative
per Annexure ‘C’ to the Writ. Petition.
Aeepordirig”tollltlle appellants the total area of Site Nos.
1*ilv.;_~l:l1d 1-4i~~A1r1easure 100’X 54′ situated in Laggere
-.y*ill.aPg:;’e. Yeshwanthapur Hobli, Bangalore North taluk. It
5
K
23
is the further case of the appellants that after
c0nsti’1.1cting the g1’ot.1.1iic1 floor. wherein the saw Vmill is
being run. Open terrace of the first floor and–»sec’0nd
floor was leased to the third appe1lant.F.:t0.ipiit.
C0[lSU’1lCU()I’l of the Kalyana Maiit.7§1p’a1«t1nder.1eaee’dVeed.
dt. 17.6.1992 as per Annexure tjqiithe
Furtlier, the material on re”eQid wouicii the
sanction plan and the ‘}.,icen’ce per-.An1’1e§ns«. V.-Annexure ‘F’ to the Writ
Petiti_0_n iii’c:11icii1ig ‘tiv1€V'”(.’.,O11dif.iO11 that the same should
‘ “=.1’10t«-.eat.1seaiiy i11c”O1’1Ve1’1ie1’1ce to the public. The Licence
._.c”0u1VCt- ‘bue.._étjssigi1ed to any other person. In case if
thetje necessity to the appellant to obtain Licence
“from E.1’i’?1}y'” other Dcpartrnent, the same may be taken and
if’ there is violation of condition, Licence is liable to be
5
24
cancelled. Genera} Licence for c0nstruCti01’1 has been
obtained by first and second appeilants on 10.6.___1992
and according to them they have put. up Collstr-n'(:ti:’t}–n”‘.*3vf
the ground floor only and the dispute is
c0nstr’uct’1on of the Kalyana Mantapa in se’e–E)nd’ .f£p01%_V V
and encroachment on the road.
15. There is no.”me1jitt”*inL_:’–th’e_contention of the
learned counsel appesfi_n’g–‘f0;§’ the’ that the
appeal/ f€ViSiQ1″z~l:EI’S u learned Single
Judge:’tV’ti–ndeefvi,_’ 1959 Act was not
maintatnahlet from the perusal of the
1nat.er.1’al e114″”1*r.:_eo1t.r_.1″Lliaithe respondent Nos. 4 and 5 in
“–#;he”‘:eWri.tePetition’ have filed w P No.9348/I993 and the
of on 1.4.1993 by hoiding that there
is temecly of filing an appeai under See.53(4)
H Act which is effective and efficacious and it
” _ ‘i.s”a–ls() open to the writ petitioners to obtain the interim
F’
‘W
25
order in t.he said appeal and wherefore, with liberty to
approach the appellate authority W the Ass_i__st:aI1t.
Comniissioner. Writ Petition was disposed of
direction that the said appeal if filed Xvithilfi’ .
F
from the date of the order. the san1’e~s.hal’_1 be ttéiitsposeiii oi.
on merits, regardiess of t.he 1imit.°a.t.iC’.n§’
appeal was filed before t11e_vp4″‘A.ssistVant’ Cornnivitésioner. V
However, it is Clear from the” of tthereeanction
plan and Licence, Anntefictgrets-.;VE* that they have
been granted_.,1;rrcler Siec. :Wherefore, it is
not open” appeilailtuswvto contend that the
proceediiigs wast’-»not, 4Vn:1air1tai11ab1e before the second
1’CSpOI1d€’£1_t’–: As’:~;ist=a11t”%E;’ornrnissio11e1*. Accordingly. the
said Cor1te11tfio.11 ofvtthe-1ea1’11ed counsel appearing for the
rightly rejected by the learned
E%j.ng-1_e So far as the merits of the case is
t’concer1’Ie.’c’i;.,_itViwsrclear from the perusa} of the material on
record that.”;t.he1’e is no merit in the contention of the
‘tag;
26
learned counsel appearing for the appeilarits that the
order has been passed in violation of principles of
natural justice as it is Clear from the order by
the second respondeiit, as per Annexure ‘G’«l:_f.o.th:ei’
Petition that notice was servedlllliipori ‘lthe
herein. They entered 21ppearance’thi’oiigh ltijeelir
and after hearing the Couns’e]e,.y:}appea1’ing’for: Mnarties
and after affording sufficient.Hopioortunity tollthle parties
to substantiate their case»; by the
second 1’espo:1de.rii. Itfgis :;c1Ve:a1″~fr’0ri1»th.e order passed by
the contended that the
site fall within that Village
Paraehayatir as abso’l’ut”e power to grant Licence and
1)lar1 fal1s'”W’ithin the CDP. Wherefore, the said
” learned counsel is also liable to be
i’eje.e,_t,ed.,~ it is clear from the order passed by
seeofid resporident that it was filed under See.2OO of
it Act. Se(*..2OO of the Act reads as follows:
W
27
“200. Deputy Commissioner’s power of
suspending execution of Orders, etc., of
Panchayats and Taiuk Boards M {1} Except
respect of eases expressly provided for i_n__’any:¥.
other provision of this Act, if in the
Deputy Commissioner the exe_e1.it,ion ei'”éLfiyf_o1’d’er’.V
or resolution of at Panehayateoi”
any order of any authority erl”oifieerf’.; {:hetl”‘
Panchayat or ‘I’a1uk or” “of
anything which is yaboutyyite ‘doI1e,lo’r..’L.S ‘being
done by or on bel’1al:l’f_Ao'{p &.j_y’l?.2ii1e~h:é1y;1t or Taluk
Board, is unjust, or is
causing, ;~’o1**1!_’i.s :l_ikely.~’ injury or
annoya;r1eeVy_’toA:’tvh:e or is likely to
Cause,._ ya’nirioyan.ce to the public or to
lead to E1 b1’ea_eii:’ot’V_t:hye”peace, he may. by order in
w1’i_ting,””=Lvinr,1e–1″A’=l1is° signature, suspend the
or”‘pr..«3hibii: the doing thereof.
a Deputy Commissioner makes
‘5’_’;1I.iy= T”orc’:e”1’v.–“‘under subsection (1), he shall
A«forthwithA:ferwa1″d to the Commissioner and to
the llpfllltihaykll, or Taluk Board affected thereby a
it of the order, with 21 st.ate.memi of the
ijggfi
28
reasons for making it; and the Commissioner
may after such iiiquiry as may be necessary
rescind or modify the orcier, as he deems fit.”
18. The leariied Single Judge has p1*oc.e’erV1efl>Va.oi2 V.
the basis that it was a revision before 1′
respondent; This Court has the
petitioners in W P No.934t’3/93 i}e.Q”-.respoh.dent’
and 5 in the Writ. Petition. to”‘fi1Ve’i»appea’1..t1’ri:1Ver 53(4)
of the 1959 Act bei’oie_ Covrvrirriissioner.
Even the source of to Sec.53(4}
of 195y§’%1A¢te.};pqsceéoo. it is clear that the
pI’0C€d1.i1’€; that followed in respect of an
appea1–. tinder .9e(:;53(?i») the 1959 Act, is different from
9at’thé-.t..1§;’E2t§edhuife in respect of appeal filed
the 1959 Act.
29
1’7. It cannot be denied having regard to [the
material o11 record that t.he finding of the
Commissioner on the question of fact thatthe:
plan and Licence had not been gzrantegdj;
with law and there is encroachmgento-f_ lpublic»’r’;-dad zwhiile”
construction of Kalyana has llbeelilvljconifinned
by the learned Single We not any
reason to interfat’ 1…Il.owever, after
arriving at respondent,
would :11: Licence and under
Sec.20t3–.of* have ordered for further
enquiry and.._passed ‘ortlers for demolition in accordance
thela’ppe__a_l.’was under Sec. 53 [4] of the 1959
and.,if tl1e’appeal was treated under Sec.200 of the
could have only suspended the Licence
re erred the matter to the Commissioner under
of the Act as referred to above. It was for the
30
sanction plan and Licence. Wherefore, it is clear that
for the above said reasons, which has been over looked
by the learned Sirigle Judge as the learned Si11gle_J«.uld_ge
has proceeded on the basis that the revisional ~
has the power to order demolition. of the”unauthori.se’d ll
construction by canceling the Libeizitlfe*~and~_proceeded_to:p
confirm the order passed”lb’yr…the A”secondiv-jre’sp’ondent, ” V
cannot at all be sustA__ained,A,though.._ the lfindingég of the
learned Single Judge fact about the
niaintainabilitydiof tl7_e ‘grant of Licence
contraVry”t’o~ justifi’eld. Wherefore, to that
extentfthe..order’p’asse.d”by.~~ the learned Single Judge is
liable to seij’~asidc’,’«ari’d the order passed by the second
“V”~.respondAe.nI;~. also””‘i’Iable to be set aside, insofar as it
procedure to be followed under Sec.
the Act and pass appropriate orders in
ll’~v.__l’accorda:1c§:e with law or if the Assistant commissioner
the appeal as one filed under Sec.53{4i») of the
peg ‘
31
1959 Act: as per the liberty given to the petitioners in
W. P. Ne.9348/1993, to contend as to why_ the
Construction of the Kalyana Mantapa coL1ld.«fn.r:’)j’t._V”§:)e
demolished and thereafter. pass app1’opria’te
accordance with law. in any View'”0f-the-‘matter; it isf,f0″.l:
the second respondent to pass7Qri:1ers in ._accQrd.ar~1cev._
with law after giving a tindlirigras to. th:e”‘apl13eal ‘V
is under sec.2oo of time 195r9’Acj;t l5rci_gndlersscc;53(4) of
the 1959 Act and thereafterl.l’v–;liass__.aj:§;§rVlpriate orders in
accordance the..lig’ht”eftheifobservation made
in the ‘blrder.,:isndeijaendently being influenced by
any of ,made on merits and pass
further orders’ i411fa(:’c_0rda1’1ce with law. To that extent
eAt}16′:c.jdi’d.e;;.” passedl:$y”‘tahe learned Single Judge is liable to
Aeenriclilrigly, Writ Appeal is allowed in part. The
remitted to the extent of the order passed by
secoiad respondent dt.9.9.1993 insofar as it relates
L
we
32
to demolition of (‘.()I’}SU’LlCUO1] of {Z118 Kalyana Mantiapa
and eviction ofthe appellants, is set aside and matter is
remitted to the second respondent. for pr:1ssir1g ordsfs in
accordance with law in the light of the 0bseffix’:tt’itii:.s
made in this appeal.
i
BN8