- 1 - NC: 2025:KHC:15319 WP No. 10347 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE N S SANJAY GOWDA WRIT PETITION NO. 10347 OF 2017 (LB-RES) BETWEEN: ROOHAN MONTEIRO S/O G.R.MONTEIRO, AGED 41 YEARS, C/O DHARMARAJ ASSOCIATES, LIGHT HOUSE HILL ROAD, REPRESETED BY HIS GPA HOLDER., MR.S.M.ARSHAD, M/S/MOHTISHAM COMPLEXES PVT LTD., EMPIRE BUILDING, M.G.ROAD., MANGALORE-575 003. …PETITIONER (BY SRI. DEVI PRASAD SHETTY, ADVOCATE) AND: MAGALORE CITY CORPORATION CITY CORPORATION BUILDING, LALBAGH, MANGALORE-575 003 BY ITS COMMISSIONER …RESPONDENT (BY SRI. K.N.NITISH, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED:24.05.2013 VIDE ANNEXURE-B PASSED BY THE RESPONDENT, ETC. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 12.02.2025, COMING ON FOR Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:15319 WP No. 10347 of 2017 PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: THE HON'BLE MR JUSTICE N S SANJAY GOWDA CAV ORDER 1. The petitioner is the owner of the land bearing Sy.No.41 T.S.NO.1564/1A1 of Kodialbail village, on which, pursuant to a joint venture with Mohtisham Complexes Pvt. Ltd., a residential apartment building has been constructed after obtaining approved building plan. 2. After the construction was complete, the residents of the Apartment Complex lodged a complaint to the Corporation Authorities contending that there were several deviations from the sanctioned plan and, therefore, action should be taken against the petitioner. 3. The Commissioner started proceedings under Section 321 of the Karnataka Municipal Corporations Act, - 3 - NC: 2025:KHC:15319 WP No. 10347 of 2017 1976 (KMC Act) and notified the complainants as well as the owner. 4. After hearing them, he came to the conclusion that there were three violations committed by the owner while constructing the apartment complex and they were as follows- “DzÉñÀ ¥ÀæwªÁ¢AiÀÄÄ PÉÆrAiÀiÁ¯ï ¨Éʯï UÁæªÀÄzÀ n.J¸ï.£ÀA§æ 1564/1J1 gÀ°è C£ÀĪÉÆâvÀ £ÀPÉëAiÀÄ£ÀÄß G®èAX¹ ¢PÀÄÍw ªÀiÁr ºÉZÀÄѪÀjAiÀiÁV ¤«Äð¹zÀ ¤ªÀiÁðtªÀ£ÀÄß vÉgÀªÀÅUÉƽ¸À®Ä ¢£ÁAPÀ 5-9-2007gÀAzÀÄ ¤ÃrzÀ £ÉÆÃn¹£À G®èAWÀ£ÉUÀ¼À£ÀÄß F PɼÀV£ÀAvÉ ªÀiÁ¥ÁðlÄUÉƽ¹zÉ. (1) MAzÀ£Éà CAvÀ¹Û£À°è ªÁºÀ£À ¤®ÄUÀqÉUÉ PÁ¢j¹zÀ ¨ÉÃPÁzÀ eÁUÀzÀ°è ¸ÀĪÀiÁgÀÄ 170.00 ZÀ.«Äà £ÀÄß ªÁ¸ÀzÀ ªÀÄ£É, ¥sÁèmï D¦üøï, ±ËZÁ®AiÀÄUÀ¼À£ÁßV ¥ÀjªÀwð¹ ¤«Äð¸À¯ÁVzÉ. (2) mÉgÉøÀÄì CAvÀ¹Û£À°è ¸ÀĪÀiÁgÀÄ 210.26 ZÀ.«Äà «¹ÛÃtðzÀ°è ªÁ¸ÀzÀ PÉÆÃuÉ, jQæAiÉÄñÀ£ï PÉÆÃuÉ ¤ªÀiÁðt ªÀiÁrgÀĪÀÅzÀÄ. - 4 - NC: 2025:KHC:15319 WP No. 10347 of 2017 (3) PÀlÖqÀzÀ M¼À¨sÁUÀzÀ gÀZÀ£ÉAiÀÄ°è ªÀåvÁå¸ÀªÁVgÀĪÀÅzÀjAzÀ ¥Àæwà CAvÀ¹Û£À «¹ÛÃtðªÀÅ eÁ¹ÛAiÀiÁVgÀĪÀÅzÀÄ. F ºÉZÀÄѪÀj ¤ªÀiÁðt ºÁUÀÆ mÉgÉùì£À°è£À ºÉZÀÄѪÀj ¤ªÀiÁðt¢AzÁV C£ÀĪÉÆâvÀ «¹ÛÃtð 5129.98 ZÀ.«Äà VAvÀ ¸ÀĪÀiÁgÀÄ 567.91 ZÀ.«Äà eÁ¹Û DVgÀĪÀÅzÀÄ.” 5. As the order was an order of confirmation passed under Section 321(3) of the KMC Act, the petitioner has preferred an appeal to the District Judge. However, the District Judge, came to the conclusion that there was no justification for entertaining the appeal, especially when it was admitted by the owner that there was indeed a violation of the sanctioned plan and the mere issuance of a occupancy certificate would not be a justification to quash the proceedings. 6. Being aggrieved by these orders, the present Writ Petition has been filed. 7. Learned counsel for the petitioner pointed out that during the pendency of the proceedings before the Authorities, Section 321-A was inserted, which - 5 - NC: 2025:KHC:15319 WP No. 10347 of 2017 provided for regularization of certain unlawful buildings which had been put up before the commencement of the Karnataka Town and Country Planning and certain other Laws (Amendment) Act, 2013 and the petitioner’s building being prior to 2013 would be entitled for the benefit of the said provision. 8. It was submitted that this opportunity to get the construction regularized has not even been considered by the authorities and the District Judge has noticed this but has come to the conclusion that the provision had been challenged before the High Court and, therefore, the same could not be invoked. 9. It is no doubt true that this Court has held that the provisions relating to regularization of unauthorized construction were held to be valid by this Court in W.P. No. 14141/2015 and connected matter by the order dated 15.12.2016 but, as against the said order, the matter has been carried to the Hon’ble - 6 - NC: 2025:KHC:15319 WP No. 10347 of 2017 Supreme Court and the Hon’ble Supreme Court has stated that the interim order granted by this Court would continue till the disposal of the matter before the Supreme Court. The interim order granted by this Court during the pendency of the writ petition was to the effect that the authorities should not process the applications that had been received seeking for regularization. Thus, as things stand, the applications for regularization are kept in abeyance by virtue of the order of the Supreme Court. 10. If the Hon’ble Supreme Court were to ultimately uphold the orders passed by this Court, which upheld the provision which permits the regularization of unauthorized construction, it is needless to state that the petitioner would be entitled to avail of the said remedy. 11. However, it is noticed here that the provision which permits regularization is subject to certain conditions and one of them is that no development made in the - 7 - NC: 2025:KHC:15319 WP No. 10347 of 2017 basement or usage in contravention of the Bye-Law should be regularized. 12. As already noticed above, the petitioner has converted the parking area into a residential house, office and a toilet. It is, therefore, clear that the usage of an area which is earmarked for parking would be contrary to the Bye-law and consequently this portion measuring 170.00 sq.mtrs. cannot be regularized. 13. Similarly, it is also recorded by the Commissioner that there is a structure on the terrace where a recreation room of 210.26 sq.mtrs., has been erected in the terrace, which is illegal. 14. It is to be stated here that the building in question being an apartment complex, the terrace would obviously be to the benefit of all the members of the apartment and neither the owner of the land nor any - 8 - NC: 2025:KHC:15319 WP No. 10347 of 2017 of the apartment owners by themselves would have a right to erect structure on the terrace portion. 15. It is, therefore, clear that the second infirmity pointed out by the Commissioner cannot also be regularized. 16. It is, however, noticed that the Commissioner has ultimately stated that there is an excess construction to the extent of 567.91 sq.mtrs., when the built-up area permitted was only 5129.98 sq.mtrs. This portion of deviation that is constructed in excess of the permitted area could fall within the outer limit prescribed under Section 321-A of the KMC Act i.e., 50% in case of residential buildings. 17. In that view of the matter, this Writ Petition is disposed of holding that the order of the Commissioner is confirmed by the District Court insofar as first two violations i.e., firstly, converting parking area into a residential house, flat office and - 9 - NC: 2025:KHC:15319 WP No. 10347 of 2017 secondly, construction of living room in a terrace portion along with a recreation room and the Authorities would therefore have to take action in respect of these two violations. 18. However, in respect of third violation, i.e., construction in excess of the sanctioned area, if the Hon’ble Supreme Court were to uphold the provisions relating to regularization, then obviously the petitioner would be entitled to avail of the said remedy and it will, therefore, be necessary for the Corporation to keep the order insofar as it relates to the excess construction of 567.91 sq.mtrs. in abeyance, till the Hon’ble Supreme Court decides this issue. 19. It is also needless to decide that if the Hon’ble Supreme Court ultimately upholds the provision and permits regularization, on the petitioner seeking for regularization and if the same is granted under - 10 - NC: 2025:KHC:15319 WP No. 10347 of 2017 Section 321-A, the order insofar as it relates to this portion would stand dissolved. 20. However, it is made clear that the authorities shall implement the order insofar as the conversion of the parking area into a residential house, flat office and toilet and usage of the terrace for construction of a living room and recreation room. 21. This Writ Petition is, accordingly, disposed of. 22. In view of the disposal of the petition, all pending interlocutory applications, if any, stand disposed of. Sd/- (N S SANJAY GOWDA) JUDGE HNM List No.: 1 Sl No.: 116