- 1 - HC-KAR NC: 2025:KHC:24591 WP No. 46200 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION NO. 46200 OF 2017 (LB-RES) BETWEEN: 1. MUMTAZ HUSSAIN S/O LATE HASAN SAHEB AGED ABOUT 56 YEARS R/AT PENT HOUSE, ROOHI APARTMENT LOWER BENDOOR, 2ND CROSS MANGALORE-2. REPRESENTED BY GPA HOLDER ABDUL HAMEES HASSAN S/O LATE HASAN SAHEB AGED ABOUT 66 YEARS R/AT KHATIJA MANZIL, BADRIA 2ND CROSS MANGALORE-1. …PETITIONER (BY SRI. SACHIN .B.S, ADVOCATE) AND: 1. MANGALORE CITY CORPORATION LALBAGH, MANGALORE-575001. REPRESENTED BY ITS COMMISSIONER …RESPONDENT (BY SRI. SATHYA .D, ADVOCATE FOR SRI. K.V. NARASIMHAN, ADVOCATE) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 12.7.2017 IN MISCELLANEOUS CASE NO.78 OF 2012 ON THE FILE OF 3RD ADDITIONAL Digitally signed by AL BHAGYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:24591 WP No. 46200 of 2017 DISTRICT AND SESSIONS JUDGE D.K.MANGALORE AS PER ANNEXURE-A AND CONSEQUENTLY ALLOW MIS.CASE NO.78 OF 2012 FILED BY PETITIONER AS PRAYED FOR. THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL ORDER In the captioned petition, petitioner is assailing the order passed by the respondent/Corporation under Section 321(3) of the Karnataka Municipal Corporation Act, 1976 (for short 'the KMC Act') and affirmed by the appellate Authority in M.A.No.78/2012. 2. The respondent-Corporation, upon noticing that the petitioner had deviated from the sanctioned building plan and the building licence, initiated proceedings under Section 321 of the Karnataka Municipal Corporations Act, 1976. In accordance with the said provision, the Corporation first issued a provisional order under Section 321(1), calling upon the petitioner to remove the alleged unauthorized construction. Subsequently, after considering - 3 - HC-KAR NC: 2025:KHC:24591 WP No. 46200 of 2017 the objections filed by the petitioner, the provisional order was confirmed, directing the petitioner to demolish the unauthorized construction carried out in the basement portion of the schedule property within a period of 15 days. 3. Aggrieved by the confirmation of the provisional order, the petitioner preferred an appeal before the Appellate Authority. However, the Appellate Authority, after considering the materials on record, dismissed the appeal, thereby upholding the demolition order passed by the Corporation under Section 321 of the Act. 4. This writ petition was extensively heard on multiple occasions. During the course of arguments, the petitioner strongly contended that the basement in question is exclusively being used as a parking area, and that the allegation regarding unauthorized construction of 33.75 square meters is factually incorrect. In light of this assertion, this Court deemed it appropriate to direct the respondent-Corporation to furnish instructions and to - 4 - HC-KAR NC: 2025:KHC:24591 WP No. 46200 of 2017 produce appropriate material substantiating the alleged deviation. 5. Accordingly, this Court directed the learned counsel appearing for the respondent-Corporation to carry out a spot inspection of the basement portion of the building and to submit photographic evidence along with a report. In compliance, the Corporation has produced photographs depicting that a portion of the basement is indeed constructed upon. However, this has been countered by the learned counsel appearing for the petitioner, who contends that the only structure in the basement is a toilet located in the North-Eastern corner, and that such a toilet is expressly permitted under the approved building plan. 6. In support of the above submission, the petitioner has now placed on record a true copy of the approved building plan, which appears to indicate provision for a toilet in the basement. Therefore, at this stage, this Court is of the considered view that the - 5 - HC-KAR NC: 2025:KHC:24591 WP No. 46200 of 2017 respondent-Corporation must verify the approved building plan and ascertain whether the construction in the basement strictly adheres to the plan. 7. In the event it is found that the toilet is indeed sanctioned as per the approved building plan, then the petitioner shall be permitted to retain the said toilet alone. However, any construction beyond the sanctioned toilet, if found, shall be deemed unauthorized, and the respondent- Corporation is at liberty to secure removal of illegal construction. 8. In light of the foregoing discussion, this Court proceeds to pass the following: ORDER (i) The writ petition is partly allowed; (ii) The impugned order dated 12.07.2017 passed by the III Additional District and Sessions Judge, D.K., Mangaluru, in M.A. No.78/2012, confirming the demolition order issued under Section 321 of the Karnataka - 6 - HC-KAR NC: 2025:KHC:24591 WP No. 46200 of 2017 Municipal Corporations Act, is hereby quashed and set aside, subject to the conditions stipulated below; (iii) The petitioner shall file an undertaking before this Court within two weeks, stating that, except for the toilet as shown in the approved building plan, no other construction shall be retained in the basement. If any additional construction is found, the petitioner undertakes to voluntarily remove such unauthorized construction within four weeks from today; (iv) The respondent-Corporation shall inspect the premises, verify the sanctioned plan, and if any construction beyond the sanctioned toilet is found, shall get the unauthorized construction removed forthwith; (v) It is made clear that this order does not preclude the Corporation from taking future action if fresh violations are noticed in the subject premises. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE CA List No.: 1 Sl No.: 50