1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE22D DAY OF OCTOBER, 2021 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION NO.10519/2021 (LB-RES) BETWEEN: SMT.JYOTHI W/O DIVAKAR AGED ABOUT40YEARS, R/AT BIDIRUKOTE VILLAGE, KOPPA HOBLI, MADDURU TALUK, MANDYA DISTRICT - 571425. ... PETITIONER (BY SRI.T.SESHAGIRI RAO, ADVOCATE) AND:
1. THE STATE OF KARNATAKA DEPARTMENT OF PANCHYATH RAJ REPRESENTED BY ITS SECRETARY VIDHAN SOUDHA, BENGALURU - 560 001.
2. THE EXECUTIVE OFFICER TALUK PANCHAYAT MADDUR, MADDUR, MANDYA DISTRICT - 571428.
3. THE PANCHAYAT DEVELOPMENT OFFICER BIDRUKOTE GRAMA PANCHYATH KOPPA HOBLI, MADDUR TALUK, MANDYA DISTRICT - 571425. 2
4. SRI.B.C.SOMALINGEGOWDA S/O B.M.CHANNEGOWDA AGED ABOUT50YEARS, R/AT BIDIRUKOTE VILLAGE, KOPPA HOBLI, MADDUR TALUK, MANDYA DISTRICT - 571425. ... RESPONDENTS (BY SMT.PRATHIMA HONNAPURA, AGA FOR R1; SRI.B.J.SOMAYAJI, ADVOCATE FOR R2 AND R3; SRI.K.N.MOHAN, ADVOCATE FOR R4) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED0306.2021 ONE PASSED BY THE RESPONDENT NO.2 IN G.P.APPEAL NO.3/2021 VIDE ANNX-M AND ETC., THIS WRIT PETITION COMING ON FOR ORDER
S THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
The petitioner who claims to be the absolute owner of house properties bearing Nos. 542/1 and 542/1A situated in Maddur is before this Court calling in question the order dated 3.06.2021 passed in G.P.Appeal No.3/2021-22 by the 2nd respondent/Executive Officer of the Taluk Panchayat, Maddur vacating the interim order that was granted to 3 stall further construction undertaken by the 4th respondent.
2. Heard Sri T.Seshagiri Rao, learned Advocate appearing for the petitioner, Smt. Prathima Honnapura, learned Government Advocate appearing for respondent No.1, Sri B.J.Somayaji, learned Advocate appearing for respondents 2 and 3 and Sri K.N.Mohan, learned Advocate appearing for respondent No.4.
3. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:- The petitioner who claims to be the absolute owner of house properties abutting the construction that is undertaken by the 4th respondent, who is the owner of house property bearing No.542/2 situated on the east of petitioner’s property. The 4th respondent makes an application on 18-02-2021 before the 3rd 4 respondent requesting to accord permission for construction of a building on his property. The 3rd respondent issues a licence on 17-04-2021 and a plan in terms of the resolution dated 18.02.2021.
4. The petitioner feeling aggrieved by the sanction of the said plan on the ground that it is in violation of law, approached the 2nd respondent by filing an appeal under Section 269 of the Karnataka Panchayat Raj Act, 1993 (‘the Act’ for short) read with Order 41 Rule 5 of the Code of Civil Procedure.
5. The 2nd respondent/Executive Officer accepting the appeal of the petitioner on 27-05-2021 grants an interim order of stay of the construction or any further construction pursuant to the aforesaid sanctioned plan and building licence till the next date of hearing. The 4th respondent on 31-05-2021 appears to have submitted a representation to the 2nd respondent to vacate the interim order granted on 27-05-2021. The 5 Executive Officer acting upon the said representation, without notice to the petitioner, directs the office to secure a report with regard to the construction from the 3rd respondent. The 3rd respondent/ Panchayat communicated to the 2nd respondent approving the action in favour of the 4th respondent which is construction of the alleged building. It is upon the said report, the 4th respondent later makes an application for advancement of the case and vacation of the interim order. On 3-06-2021 the Executive Officer vacates the interim order of stay granted on 27-05-2021 and observes that any construction put up by the 4th respondent would be subject to the result of the appeal filed by the petitioner. It is at that juncture, the petitioner has knocked the doors of this Court challenging the order vacating the interim order and making the construction subject to the result of the appeal. 6
6. This Court by an order dated 29-06-2021 granted an interim order of stay of the order of the Executive Officer and further construction on the ground that the licence granted to the 4th respondent was contrary to Rule 6 of the Karnataka Panchayat Raj (Gram Panchayats Control over erection of Buildings) Rules, 1994 (‘the Rules’ for short) and the said interim order is in operation as on date.
7. The learned counsel appearing for the petitioner would contend that the sanction of plan in favour of the 4th respondent or grant of a building licence on the face of it is contrary to law. The learned counsel would submit that the law would mean Rule 6 of the Rules which prohibits any such building to come up in the entire sital area.
8. On the other hand, the learned counsel Sri B.J.Somayaji appearing for the 2nd respondent would 7 vehemently refute the submission and contends that the afore-quoted Rules have been repealed and there is no law on which the petitioner could place reliance to contend that grant of building licence is in violation of the Rules.
9. The learned Additional Government Advocate Smt. Prathima Honnapura while clarifying the position places on record the Karnataka Panchayat Raj (Zilla Panchayats, Taluk Panchayats and Grama Panchayats Control over erection of Buildings) Model Bye-laws, 2015 (‘Bye-laws’ for short) that have been formulated by the State on 8-05-2015 and would submit that they are binding on the Panchayat and any construction should be within the parameters stipulated in the Bye-laws.
10. In clarification to the said submission, the 2nd respondent would submit that this Panchayat or any other Panchayat in the State has not adopted the Bye- 8 laws and they are not binding on the Panchayat and therefore, would submit that no fault can be found with the order of the Executive Officer vacating the interim order and making the construction taken up by the 4th respondent subject to the result of the appeal. The learned counsel for respondent No.4 would also toe the lines of the learned counsel representing the Executive Officer and would submit that since the proceedings are pending before the Appellate Authority and the petitioner has approached this Court against an interim order, it should not be interfered with as the petitioner will have a remedy to approach this Court once the final order is passed by the Executive Officer.
11. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the materials on record.
12. Regulation of construction in the precincts of Panchayat was regulated by the Rules earlier. Those 9 Rules no doubt stood repealed once the Bye-laws were brought into force. The Bye-laws are promulgated by the Government in exercise of powers conferred on it by Section 315 read with Section 311 of the Act. These Bye-laws have come into force on 8-05-2015. Sections 311, 315 and 316 which are all germane for a consideration of the issue in the lis read as follows:
"311. Power of Government to make rules.- (1) The Government may after previous publication, by notification in the Official Gazette make rules to carry out the purposes of this Act. (2) A rule under this Act may be made with retrospective effect and when such a rule is made the reasons for making the rule shall be specified in a statement laid before both Houses of the State Legislature. Subject to any modification made under section 320 every rule made under this Act shall have effect as if enacted in this Act. (3) In making a rule under this section, the Government may provide that a person guilty of breach thereof shall, on conviction, be punished with fine which may extend to five hundred rupees and where the breach is a continuing one with further fine which may extend to twenty-five 10 rupees for every day on and after the first day on which the breach continues.
315. Power of Gram Panchayat to make bye-laws.– (1) A Gram Panchayat may, subject to the provisions of this Act and the rules made under section 311 and the regulations made under section 313 and with the previous sanction of Zilla panchayat, alter or rescind bye-laws or make bye-laws, – (a) for the regulation and inspection of markets, all public places used for the sale of articles and slaughter houses and all places used by or for animals which are for sale or hire or the produce of which is sold and for the proper and clean conduct of business therein, for regulating the sale of fruits, flowers, vegetables, or meat, fish, eggs and animals in the Gram Panchayat markets or other specified places and for fixing the rents and other charges to be levied for the use of any of them which belong to the Gram Panchayat; (b) specifying the conditions on or subject to which and the circumstances in which and the areas or localities in respect of which, licences may be granted, refused, suspended or withdrawn for the use of any place not belonging to the Gram Panchayat ; (c) for the regulation of rearing and keeping horses, cattle or other quadruped animals or poultry, birds for transportation, sale or hire or for sale of the produce thereof; 11 (d) prohibiting the stalling or herding of horses, camels, cattle, donkeys, pigs, sheep or goats, otherwise than in accordance with such terms prescribed in such bye-laws in regard to the number thereof and the places to be used for the purpose, as may be necessary to prevent danger to the public health; (e) for securing the cleanliness free from open defecation and sanitation and management of solid and liquid waste within the Gram Panchayat area; (f) for the registration of births and deaths and the taking of statistics within the Gram Panchayat area and for enforcing the supply of such information as may be necessary to make such registration or statistics effective; (g) regulating the disposal of the dead, the maintenance of all places for the disposal of the dead in good order and in a safe sanitary condition due regard being had to the religious usages of the community or section of the community entitled to the use of such places for the disposal of the dead; (h) for enforcing the supply of information as to any cases of dangerous disease; (i) for enforcing the supply of such information by inhabitants of the Gram panchayat area as may be necessary to 12 ascertain their respective liabilities to any tax imposed therein; (j) for conserving and preventing injury to sources and means of water supply and appliances owned by Gram Panchayat, for the distribution of water whether within or without the limits of the Gram Panchayat area and regulating all matters and things connected with the supply and use of water and the turning on or turning off and preventing the wastage of water, and the construction, maintenance and control of Gram Panchayat water works and of pipes and fittings in connection therewith, whether the property of the Gram Panchayat or not; Explanation - For purposes of this clause, “sources and means of water supply” shall include private wells which are used by the public. (k) for securing an adequate supply of pure water to persons occupying residential premises; (l) regulating the use of public bathing and washing places within Gram Panchayat limits; (m) regulating the disposal of carcasses of dead animals; (n) prescribing the conditions subject to which permission may be given for the temporary occupation of or the 13 erection of, temporary structures on public streets or for projections over public streets; (o) regulating the structure and dimensions of plinths, walls, foundations, floors, roofs and chimneys of new buildings, for the purpose of securing stability and the prevention of fires, and for purpose of health; (p) regulating the erection or use of buildings for private or commercial purposes subject to the Karnataka Town and Country Planning Act, 1963; (q) regulating in any other particular not specifically provided for in this Act, the construction, maintenance and control of drains, sewers, ventilation shafts, receptacles for dung and manure, cesspools, water closets, privies, latrines, urinals and drainage or sewerage works of every description, whether the property of the Gram Panchayat or not; (r) determining the information and plans to be required by the Gram Panchayat area for forming of new extensions or layouts or making new private streets in accordance with The Karnataka Town and Country Planning Act, 1963; (s) subject to the provisions of the Karnataka Traffic Control Act, 1960, prohibiting vehicular traffic in any particular street, so as to prevent danger, obstruction or inconvenience to the public, by 14 fixing up posts at both ends of such street or portion of such street, prohibiting the transit of any vehicles of such form, construction, weight or size, or laden with such machinery or other unwieldy objects as may be deemed likely to cause injury to the roadway or to any construction thereon except under such conditions as to time, mode of traction or locomotion, use of appliances for protection of the roadway, number of lights and assistants and other general precautions as may be prescribed, either generally in such bye-laws or in special licences to be granted in each case upon such terms as to time, of application and payment of fees therefore as may be prescribed in such bye-laws: Provided that no such bye-law relating only to any particular street or portion of a street shall be deemed to be in force, unless and until notices of such prohibition shall have been posted up by the Gram Panchayat in conspicuous places at or near both ends of such street or portion of street; (t) securing the protection of public parks, gardens, Thrash field and open spaces, vested in or under the control of the Gram Panchayat, from injury or misuse, regulating their management and the manner in which they may be used by the public, and providing for the proper behaviour of persons in them; (u) prescribing the qualifications of surveyors or persons by whom plans required are to be prepared or of plumbers for 15 licensing persons to be surveyors or plumbers or water supply contractors and fixing the fees chargeable for such licences and for modifying the provisions of or revoking such licences and prohibiting any alterations or repairs or fittings to water or drainage pipes or house connections being carried out or made, except by licensed plumbers or water supply contractors providing for the exercise of adequate control on all licensed plumbers or licensed water-supply contractors, the inspection of all works carried out by them and the hearing and disposal of complaints made by the owners or occupiers of premises with regard to the quality of work done, material used, delay in execution of work and the charges made, by a licensed plumber or licensed water-supply contractor; (v) prescribing the conditions on or subject to which and the circumstances in and the areas or localities in respect of which licences may be granted, refused, suspended, or withdrawn for establishment in any premises, of any factory, as defined in the Factories Act, 1948; (w) prescribing the conditions on or subject to which permission may be granted, renewed, refused, suspended or withdrawn for erecting, exhibiting, fixing or retaining any advertisement liable to tax under this Act, over any land, building or structure or upon or in any vehicle or for displaying in any other manner; 16 (x) the fees to be charged for licences or permissions granted by the Gram Panchayat or for the inspection of records or grant of copies of documents or duplicate licences or permits; and(y) generally for the regulation of all matters relating to Gram Panchayat administration. (2) Every Gram Panchayat shall, before making any bye-law under this section, publish in such manner as may be prescribed for the information of the persons likely to be affected thereby, a draft of the proposed bye-law, together with a notice specifying a date on or after which the draft will be taken into consideration, such date not being earlier than thirty days from the date of publication of the draft of the proposed bye-law and shall, before making the bye-law, receive and consider any objection or suggestion with respect to the draft which may be made in writing by any person before the date so specified. 315A. Power of Government to cancel or modify bye-laws of Gram Panchayat.– (1) The Government may, at any time by notification repeal wholly or in part or modify any bye-law made by any Gram Panchayat. Provided that, before taking any action under this sub- section, the Government shall publish a draft of the proposed notification and communicate the same to the Gram Panchayat, fix a reasonable period for the Gram Panchayat and the members of the 17 public to show cause against the proposal and consider the explanation and objections, if any, of the Gram Panchayat and the members of the public. (2) The repeal or modification of any bye-law shall take effect from the date appointed as notified in the official Gazette, if no date is therein specified then from the date of publication and shall not affect anything done, omitted or suffered before such date.
316. Power of Government to make model regulations and bye-laws and adoption of such regulations and bye- laws by the Panchayats.- (1) The Government may , subject to the provisions of this Act and the rules made under section 311 and after previous publication of the draft for not less than one month, make model regulations and bye-laws for Grama Panchayats, Taluk Panchayats and Zilla Panchayats. (2) A Grama Panchayat, Taluk Panchayat or Zilla Panchayat may by resolution adopt the model bye-laws or regulations, as the case may be, made under sub-section (1), and such bye-laws and regulations shall come into force within the jurisdiction of the Grama Panchayat, Taluk Panchayat or Zilla Panchayat from such date as the Grama Panchayat, Taluk Panchayat or Zilla Panchayat, as the case may be, may specify in a notice published in the prescribed manner. 18 (3) The Government may by order direct any Grama Panchayat, Taluk Panchayat or Zilla Panchayat to adopt the model bye-laws and regulations in respect of any matter within such period not being less than three months from the date of receipt of the direction by the Panchayat concerned. (4) If any Grama Panchayat, Taluk Panchayat or Zilla Panchayat, fails to take any action for adopting the model bye-laws or regulations, as the case may be, the Government may, by notification, declare that the said model bye-laws or regulations , as the case may be, shall come into force within the jurisdiction of the Grama Panchayat, Taluk Panchayat or Zilla Panchayat from such date as may be specified in such notification, and such bye- laws or regulations, as the case may be, shall come into force accordingly. (5) The provisions of this section will have the effect notwithstanding any thing contained in sections 313, 314, and 315.317."
Sections 311, 315 and 316 of the Act empower the Government to make Rules. Section 315 of the Act is the power of the Grama Panchayat to make Bye-laws. Section 315 (a) is the power of the Government to cancel 19 or modify the Bye-laws of the Panchayat. Section 316 deals with the power of the Government to make model regulations and bye-laws and adoption of such regulations and bye-laws by the Panchayat. A conjoint reading of the afore-quoted provisions of the Act it becomes clear that the Bye-laws are promulgated under Section 316 of the Act and not under Section 315 as is indicated. Quoting of the wrong provision will not denude the power of the State Government to make model regulations or bye-laws since the power is available under Section 316 of the Act. This Bye-law repealed the earlier Rules.
13. Though the contention of the learned counsel appearing for the petitioner is that the construction undertaken by the 4th respondent is contrary to the aforesaid Rules, those Rules having been repealed they cannot be pressed into service by the petitioner. That would not mean that the construction of the 4th 20 respondent can proceed in vacuum. The Bye-laws now promulgated also regulate erection of buildings. Bye- No.18 deals with open space area and height limitations. Bye-law No.18.1 which is germane for the purpose of the lis reads as follows:
"18. Open space, area and height initiations: (1) Residential Buildings:- There shall be a minimum open space of 1 mtr in the front and ½ mtr on left, right sides and rear of the plots upto 100 sq.m. area. For plots above 100 sq.m and upto 300 sq.m. there shall be a minimum open space of 1 mtr all around. For plots above 300 sq.m. there shall be minimum open space of 2 mtr all around. The maximum coverage for plots upto 100 sq.m. shall be 75 per cent, for plots of 100 to 300n sq.m. the coverage shall be 65% and for plots above 300 sq.m. the coverage shall be 50. The maximum height of buildings shall be 3 storeys (11.0 mtr.)."
In terms of the afore-quoted Bye-law No.18 for a residential property which is up to 100 sq.mts. the coverage area of the plot should be 75%. If the building licence and sanctioned plan is considered on the touchstone of the Bye-laws it becomes unmistakably clear that it is in blatant violation. In terms of the 21 building licence granted the plot area of the 4th respondent is 1024 sq.ft which is 94.97 sq.mts. and the plinth area is 945 sq.ft. The permitted construction or the coverage area of construction in the plot is 92%. Therefore, on the face of it the construction undertaken by the 4th respondent is contrary to Bye-law No.18(1) which restricts coverage of 75%.
14. The submission of the learned counsel appearing for the 2nd respondent that these bye-laws are not adopted by this Panchayat or any other Panchayat in the State, in the first blush, sounds acceptance. Sub-section (1) of Section 316 of the Act deals with promulgation of Bye-laws by the State, which has happened on 8-05-2015. Sub-section (2) of Section 316 directs that the Gram Panchayat or the Taluk Panchayat or Zilla Panchayat may by resolution adopt the Bye-laws. Sub-section (3) thereof mandates that such Bye-laws should be adopted within 3 months from 22 the date of its receipt by the Panchayat concerned. Sub- section (4) mandates that if the Gram Panchayat or the Taluk Panchayat or the Zilla Panchayat fails to take action for adopting the Bye-laws or Regulations, Government by notification declare that such Bye-laws would come into force within the jurisdiction of the Gram Panchayat. This is the mandate of the Act.
15. As stated hereinabove, the Bye-laws have come into force on 8-05-2015. There are various Gram Panchayats, Taluk Panchayats and Zilla Panchayats in the State of Karnataka. The Panchayats are obliged in law to adopt those Bye-laws and bring the constructions that are undertaken or to be undertaken in the precincts of those areas within the parameters stipulated in the Bye-laws. If the Panchayats have not adopted the same, despite close to 7 years of coming into effect, they have done it at their own peril. 23
16. It is in public domain that there are mushrooming of construction activities in all the areas coming under the Gram Panchayats, Taluk Panchayats and Zilla Panchayats. The violation of known norms of law in construction is not limited to areas in the Corporation. It has percolated into the areas of Panchayats. Therefore, time has arrived for the Government to regulate the constructions undertaken in the panchayat areas as well. The Government has notified the Bye-laws. The Bye-laws cannot remain on paper and the constructions in the Panchayat areas can go on unabated violating every known norm of law. Therefore, if any of the Panchayats in the State of Karnataka have not adopted the Bye-laws in terms of sub-section (2) of Section 316 of the Act it is for the Government now to forthwith act and issue such notification under sub-section (4) of Section 316, failing which the State would be permitting the constructions within the Panchayat area to go on unbridled without 24 any regulations. It is trite law that there cannot be a vacuum in the regulations in any walk of a civil life in the society. We are In a society governed by rule of law, it cannot be the other way round. Therefore, it is imperative for the State to now act and issue such notification in terms of sub-section (4) of Section 316 of the Act to all those Panchayats who have not yet opened their pen to adopt the Bye-laws, making it mandatory for the Bye-laws to be a regulatory mechanism for construction to be undertaken by its citizens who come within the Panchayats.
17. Insofar as the impugned order is concerned, the appeal is pending before the Executive Officer. It is for the Executive Officer to decide the appeal within the 4 corners of law i.e., the Bye-laws. Since interim order is operating in the case at hand which stalls further construction by the 4th respondent the same shall be in 25 operation till the Appellate Authority i.e., the Executive Officer decides the appeal pending before him.
18. For the aforesaid reasons, I pass the following: ORDER
(i) Writ Petition is allowed. (ii) The order of the Appellate Authority/Executive Officer dated 3-06- 02021 passed in G.P.Appeal No.3 of 2021- 22 vacating the interim order stands quashed and the interim order granted by the Appellate Authority dated 27-05-2021 will continue to operate till the disposal of the appeal. (iii) The State Government shall take appropriate steps in compliance with sub- section (4) of Section 316 of the Act for issuance of a Notification making the Bye- laws applicable to all the Panchayats in the State which have not adopted the same as on date within a reasonable time 26 to stall chaotic constructions coming up in Panchayat areas. (iv) The Registry is directed to communicate this order to the Secretary to Government, Rural Development and Panchayat Raj Department for swift and appropriate action. Sd/- JUDGE UN