Case Note & Summary
The matter arose from a writ petition filed under Articles 226 and 227 of the Constitution of India, challenging the order of the III Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, dated 30.11.2017 in Miscellaneous Appeal No. 86/2012. That order had confirmed the Commissioner of Mangalore City Corporation's confirmatory order dated 14.09.2012 passed under Section 321(3) of the Karnataka Municipal Corporations Act, 1976 (KMC Act). The original petitioner (since deceased and represented by legal representatives) contended that no notice under Section 321(1) of the KMC Act had been issued to him before the confirmatory order was made; only a notice under Section 308 of the KMC Act had been issued. The Corporation argued that the purport and intent of Sections 308 and 321 were the same and that a notice under Section 308 was sufficient compliance with Section 321(1). The sole legal issue was whether a notice under Section 308 could substitute for a notice under Section 321(1) and whether a confirmatory order under Section 321(3) could be passed without a prior provisional order under Section 321(1). The High Court analyzed the provisions of Sections 308 and 321. Section 308 gives the Commissioner power to require alteration of work not in accordance with plans or in contravention of the Act, by issuing a notice to show cause or to make alterations. Under Section 308(3), the Commissioner can confirm the notice. Section 321 deals with demolition or alteration of buildings unlawfully commenced, carried on or completed, and permits the Commissioner to make a provisional order requiring demolition or alteration. Under Section 321(2), a copy of the provisional order must be served with a show cause notice before confirmation under Section 321(3). The Court noted that Section 321(1)(ii) specifically covers situations where alterations required by a notice under Section 308 have not been duly made, indicating that a further notice under Section 321(1) is required after a confirmatory order under Section 308(3) is not complied with. The Court held that a notice under Section 308 is not a substitute for a notice under Section 321(1); they are distinct steps. In the present case, since only a notice under Section 308(1) had been issued and not even confirmed under Section 308(3), the Corporation could not have straightaway passed a confirmatory order under Section 321(3). The appellate court's contrary conclusion was set aside. The writ petition was allowed, certiorari was issued, and the confirmatory order was quashed, with liberty to the respondent to take fresh action in accordance with law.
Headnote
A) Municipal Law - Building Regulations and Demolition - Interplay between Sections 308 and 321 of Karnataka Municipal Corporations Act, 1976 - Notice under Section 308 not a substitute for notice under Section 321(1); separate provisional order required before confirmatory order under Section 321(3) - The High Court held that the scheme of the Act distinguishes between a notice to show cause regarding alterations under Section 308 and a notice for demolition or alteration of unlawfully commenced work under Section 321. Section 321(1)(ii) specifically contemplates a situation where a confirmatory order under Section 308(3) has not been complied with, thus necessitating a fresh provisional order under Section 321(1). The Court found that in the present case no notice under Section 321(1) was issued and the notice under Section 308(1) had not even been confirmed under Section 308(3). Consequently, the straightaway confirmatory order under Section 321(3) was invalid. The appellate order was quashed and liberty was reserved to take fresh action in accordance with law. (Paras 6-14)
Issue of Consideration
Whether, without the issuance of a notice under Section 321(1) of the Karnataka Municipal Corporations Act, 1976, a confirmatory order could be passed under Section 321(3), and whether a notice issued under Section 308 could be said to be issued under Section 321(1).
Final Decision
The writ petition is allowed; certiorari issued; the order of the III Additional District and Sessions Judge in Misc. Appeal No. 86/2012 and the confirmatory order of the Commissioner under Section 321(3) dated 14.09.2012 are quashed; liberty reserved to the respondents to take further action in accordance with law.
Law Points
- Legal points not extracted
- A notice under Section 308 of the Karnataka Municipal Corporations Act
- 1976 cannot substitute a notice under Section 321(1)
- a separate provisional order under Section 321(1) must be issued before a confirmatory order under Section 321(3) can be passed
- the scheme of the Act requires compliance with Section 308(3) before triggering Section 321(1)(ii)
- straightaway confirmatory order under Section 321(3) without prior notice under Section 321(1) is invalid.
