- 1 - NC: 2025:KHC:18244 WP No. 22941 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE N S SANJAY GOWDA WRIT PETITION NO. 22941 OF 2023 (LB-RES) BETWEEN: 1. HIDYATHULLAH ISLAM MADARSA SAMITI GOLIKATTE, HAVANJE GRAM BHRAHAMAVARA HOBLI, UDUPI TALUK, UDUPI DISTRICT 576124 REPRESENTED BY ITS SECRETARY HABIB, S/O SHEIK ISMAIL …PETITIONER (BY SRI. MOHAMMED TAHIR.,ADVOCATE) AND: 1. STATE OF KARNATAKA BY ITS SECRETARY, DEPARTMENT OF RURAL DEVELOPMENT AND PANCHAYAT RAJ, VIDHANA SOUDHA,BANGALORE 560001 2. PANCHAYAT DEVELOPMENT OFFICER HAVANJE GRAM PANCHAYAT, BHRAHAMAVARAHOBLI,UDUPI TALUK, UDUPI DISTRICT 576124 3. HAVANJE GRAM PANCHAYAT BHRAHAMAVARAHOBLI, UDUPI TALUK, UDUPI DISTRICT 576124 REP BY ITS PRESIDENT …RESPONDENTS (BY SMT. PRATHIMA HONNAPURA., ADDITIONAL ADVOCATE GENERAL ALONG WITH SRI V.SHIVA REDDY., AGA FOR R-1; SRI. ASHOK.N.NAYAK., ADVOCATE FOR R-2 & R-3) Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:18244 WP No. 22941 of 2023 THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO R3 GRANT LICENSE TO PETITIONER BY CONSIDERING THE APPLICATION DATED 06.09.2023 AT ANNEXURE -F AS PER THE PANCHAYAT RAJ ACT 1993 AND ERACTION OF BUILDING RULES 2015, ETC. THIS PETITION, COMING ON FOR FURTHER CONSIDERATION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE N S SANJAY GOWDA ORAL ORDER 1. The petitioner is a society registered under the Karnataka Societies Registration Act, 1960. It has presented this petition being aggrieved by a public notice that has been affixed in the office of the Gram Panchayat inviting objections for the proposed construction of a religious structure / mosque. It is contended that the Rules do not permit calling for objections and the very purpose of calling for objections is to unnecessarily invite disquiet amongst the residents of the gram panchayat and to divide the community on the basis of religion and to ultimately ensure that the mosque is not constructed by the petitioner Society. - 3 - NC: 2025:KHC:18244 WP No. 22941 of 2023 2. The State, on the other hand, contends that the Rules framed under the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 [for short, ‘the Act’] does empower the Panchayat to call for objections and the Panchayat has merely followed the Rules. 3. The petitioner thereafter has also amended the writ petition and has also challenged Rule 7(1)1 of the Karnataka Gram Swaraj and Panchayat Raj (Taxes, Rates and Fees of Grama Panchayats) Rules, 2021 [for short, “the 2021 Rules”] as being ultra vires and contrary to the Model Bye-laws that have been framed in the year 2015, viz., the Karnataka Panchayat Raj (Zilla Panchayats, Taluk Panchayats and Grama Panchayat Control Over erection of buildings) Model Bye-laws, 2015 [for short, “2015 Model Bye-laws”] 17. Inviting objections etc.-(1) The Gram Panchayat shall, under Rule 5, after receipt of the application specify a date not exceeding fifteen days in public notice and invite objections. (2) If any objections are received, review them in accordance with the rules and present the license or permission proposal along with the objections in the Grama Panchayat meeting. The objections shall be discussed and settled in the meeting. - 4 - NC: 2025:KHC:18244 WP No. 22941 of 2023 4. In light of the above submissions, the question to be considered in this writ petition is: “ Whether, in the facts and circumstances of the case at hand, the Rules framed under the Karnataka Grama Swaraj and Panchayat Raj (Taxes, Rates and Fees of Gram Panchayat) Rules, 2021 would apply, OR, the Karnataka Panchayat Raj (Zilla Panchayats, Taluk Panchayats and Gram Panchayat Control Over erection of buildings) Model Bye-laws, 2015 would apply. ” 5. For a better understanding and appreciation of facts and circumstances of the case at hand, an overview of the relevant provisions of the Karnataka Gram Swaraj and Panchayat Raj Act, the 2021 Rules and the Model Bye-laws of 2015 would be necessary. - 5 - NC: 2025:KHC:18244 WP No. 22941 of 2023 6. Section 642 of the Act provides for the manner in which erection of buildings ought to be regulated. It states that subject to the Rules that may be prescribed, no person should erect any building, alter 264. Regulation of the erection of buildings.- (1) Subject to such rules as may be prescribed, no person shall erect any building or alter or add to any existing building or erect advertisement hoarding or set up mobile towers atop or alongside or in any vacant space within the premises or reconstruct any building without the written permission of the Grama Panchayat. The permission may be granted on payment of such fees as may be specified by bye-laws. (2) If the Grama Panchayat does not, within sixty days from the receipt of the application determine whether such permission should be given or not and communicate its decision to the applicant, such permission shall be deemed to have been given and the applicant may proceed to execute the work, but not so as to contravene any of the provisions of this Act or any rules or bye-laws made under this Act. (3) Whenever any building is erected, added to or reconstructed without such permission or in any manner contrary to the rules prescribed under sub-section (1) or any conditions imposed by the permission granted, the Grama Panchayat may, whether any action is taken or not against such person under section 298,- (a) direct that the building, alteration or addition be stopped; or (b) by written notice require within a reasonable period to be specified therein , such building, alteration or addition to be altered or demolished as it may deem necessary for the promotion of public health or prevention of danger to life or property. (4) In the event of non-compliance with the terms of any notice under clause (b) of sub-section (3) within the period specified in the notice, it shall be lawful for the Grama Panchayat to take such action as may be necessary for the completion of the act thereby required to be done, and all the expenses therein incurred by the Grama Panchayat shall be paid by the person or persons upon whom the notice was served and shall be recoverable as if it were a tax imposed under section 199. (5) An appeal shall lie to the Executive officer from any order or direction or notice of the Grama Panchayat under sub-section (1), (2) or (3) and his decision on such appeal shall be final. (5A) Gram Panchayats shall strictly comply with the provisions of the Town and Country Planning Act, 1961 in the matter of issue of building license or approvals of housing or residential layouts. Any approval in violation of any of the provisions of the town and country planning Act, 1961 shall be construed as “misconduct” for which the concerned officer or official shall be liable for disciplinary action. (6) Any appeal under sub-section (5) pending before the Public Works and Amenities Committee of the Zilla Parishad shall on the date of commencement of the Karnataka Panchayat Raj Act, 1993 stand transferred to the Assistant Commissioner and such appeal shall be decided by him as if it had been filed before him. - 6 - NC: 2025:KHC:18244 WP No. 22941 of 2023 or add to any existing building or reconstruct any building without the written permission of the Gram Panchayat and the permission may be granted on payment of such fees as may be specified by the Bye-laws. 7. Thus, the substantive provision of the Act would basically state that the permission has to be obtained in accordance with the Rules and the permission if any granted would be on payment of such fees as may be specified by the Bye-laws. 8. It is therefore clear that the substantive provision is in two parts: the first part stipulates the Rules that may be prescribed for erecting a building; and the second part talks about the payment of fees as may be specified by the Bye-laws. 9. Chapter XIX of the Act deals with the Rules, Regulations and Bye-laws. Section 311 empowers the Government to make Rules to carry out the purpose - 7 - NC: 2025:KHC:18244 WP No. 22941 of 2023 of the Act by issuance of notification in the Gazette. It also provides for the Rules to be made with retrospective effect and also stipulates that the Government could provide for imposition of a punishment with fine in the event of breach of any Rules. 10. Section 313 of the Act empowers the panchayat to make regulations with the previous sanction of the Government and Section 314 of the Act similarly empowers the panchayat to make regulations to carry out the purpose of the Act insofar as it relates to the powers and duties of the Zilla Panchayat and the Taluk Panchayat respectively. 11. Section 315 of the Act empowers the Gram Panchayat to make Bye-laws with the previous sanction of the Zilla Panchayat. - 8 - NC: 2025:KHC:18244 WP No. 22941 of 2023 12. Section 315(1)(o)3 of the Act provides for framing of Bye-laws by the Panchayat to regulate the structure and dimension 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. 13. Section 315(1)(p)4 of the Act provides for framing of Bye-laws to regulate the erection or use of buildings for private or commercial purposes, subject to the provisions of the Karnataka Town and Country Planning Act, 1963. 14. In view of the above, it is clear that the Gram Panchayat would have the power to make the Bye- 3315. 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 byelaws, – (a) x x x (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; x x x 4(p) regulating the erection or use of buildings for private or commercial purposes subject to the Karnataka Town and Country Planning Act, 1963; - 9 - NC: 2025:KHC:18244 WP No. 22941 of 2023 laws, but the power to make the Bye-laws would be subject to the provisions of the Act, the Rules made under Section 311, the Regulations made under Section 313 of the Act, and should have previous sanction of the Zilla Panchayat. 15. Section 315A5 of the Act enables the Government to cancel or to modify the Bye-laws of the Grama Panchayat by issuance of a notification. 16. It is therefore clear that the power of the Gram Panchayat to frame the Bye-laws is a limited power and subject to the right of the Government and subject to the rules and regulations that have been framed under Sections 311 and 313 of the Act and also has the approval of the Zilla Panchayat. 5315A. 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 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. - 10 - NC: 2025:KHC:18244 WP No. 22941 of 2023 17. Assuming these requirements are complied with, nevertheless, the Government would have the power to cancel or modify the Bye-laws under Section 315A. 18. Section 3166 of the Act empowers the Government to make model regulations and Bye-laws and adoption of such regulations and Bye-laws by the panchayats. The provision empowers the Government to publish a draft regulations or Bye-laws, call for objections, which are to be filed within thirty days and thereafter, consider and publish the same. 6 316. 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. (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. - 11 - NC: 2025:KHC:18244 WP No. 22941 of 2023 19. The Gram Panchayat, Taluk Panchayat or Zilla Panchayat are empowered to adopt the model Bye- laws or regulations and on such adoption, the Bye- laws and regulations would come into force from such date as the Gram Panchayat, Taluk Panchayat and Zilla Panchayat may prescribe, on a notice published in the prescribed manner. 20. Section 316(3) of the Act empowers the Government to issue an order directing the Panchayats to adopt the model bye-laws 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 and Sub-section (4) thereof states that if a panchayat fails to take any action for adopting the model bye-laws or regulations, the Government may by notification declare that the said model bye-laws or regulations shall come into force within the jurisdiction of the Panchayats from such date as may be specified in such notification. - 12 - NC: 2025:KHC:18244 WP No. 22941 of 2023 21. Thus, it is therefore clear that the Government has the power to frame model Bye-laws and also make them applicable to all the Panchayats, if the Panchayat choose not to pass a resolution adopting the same. 22. It is not in dispute that the Government has framed Model Bye-laws in the year 2015 after complying with the procedure stipulated in Section 316 of the Act and the said Model Bye-laws have been framed in exercise of powers conferred under Section 315 read with Section 311 of the Act. 23. In light of the above fact, it is rather clear that these model Bye-laws would apply in respect of the panchayats exercising control over the erection of the buildings. 24. Bye-law (4) of the Mode Bye-laws of 2015 provides for application for erection or re-erection, material alteration or demolition of the building. Bye-law (4) - 13 - NC: 2025:KHC:18244 WP No. 22941 of 2023 mandates every person who intends to erect a building to make an application by enclosing the documents stated therein. 25. Bye-law (8) states that no application filed under Bye-law (7) would be valid unless it is accompanied with a receipt for having paid necessary license fees. Sub-bye-laws of Bye-law (8) provide for fees that had to be paid in respect of various buildings, including public buildings which are constructed for educational, religious or charitable use. 26. Bye-law (9)7 provides for grant or refusal of license and Bye-law (10) provides of cancellation of licence. 79. Grant or refusal of license.-(1) The Authority/PDO shall consider every application and after satisfying the requirements of part II may either sanction or refuse to sanction the plans and statements or may sanction with such modification or directions as he may deem necessary. (2) The decision of the Authority shall be communicated to the person giving the notice or to his legally authorised agent in writing in prescribed form given in Schedule IV, as the case may be, within the period prescribed in Section 64 and one set of the drawings and specifications duly endorsed shall be returned to him. (3) Once the plan has been scrutinised and objections have been pointed out, the owner giving notice shall modify the plan to comply with the objections raised and re-submit it. The Authority shall scrutinise the resubmitted plan and shall notify the result within 30 days of the receipt of the replies to the objections. (4) Anyone aggrieved by an order passed under clause (i) may within thirty days of the date of communication of the order appeal to the executive officer and the decision of the executive officer shall be final. - 14 - NC: 2025:KHC:18244 WP No. 22941 of 2023 27. As could be seen from the said Bye-law (9), there is no provision which enables the panchayats to issue a public notice and call for objections regarding applications that have been submitted for erection of any building. 28. In light of these provisions under the Model Bye-laws of the year 2015, it is clear that the panchayat would have no right to issue a public notice calling for objections. The panchayat is only required to consider the merits of the application and either grant or reject the application. The question of panchayat inviting objections from the residents of the panchayat and giving a reason to the panchayat an opportunity to object to construct the building is not provided for. (5) The building license is valid for three years by which the building should be completed. For further period it shall be got revalidated and the application would be treated as for new building license and the rules then in force shall apply. 10. Cancellation of license. The Authority may cancel any license issued under these provisions, wherever there has been any false statement or any misrepresentation of any material fact in the application on which the licence was based. - 15 - NC: 2025:KHC:18244 WP No. 22941 of 2023 29. It may be pertinent to state here that if a person owns a property, the right to use the property can be regulated by law, i.e., the manner in which the building can be constructed and the purpose for which a building can be constructed on a particular land. However, the right to utilize the property cannot be saddled with the liability of securing the views of the residents so as to enable the owner of the property to enjoy or utilize the property in a lawful manner. 30. If a neighbor or a resident of the panchayat is allowed to have a say in the manner in which a building can be put up or the type of building that may be put up in the property owned by another person, the same would only amount to transgression of the basic right of the owner of the property to enjoy his property in a lawful manner. 31. The State Government however sought to place reliance on the 2021 Rules to contend that Rule 7 of - 16 - NC: 2025:KHC:18244 WP No. 22941 of 2023 the said Rules provides for issuance of a public notice and inviting objections. 32. The 2021 Rules are essentially Rules that are framed for the purpose of fixing the taxes, rates and fees of the Gram Panchayat. 33. Chapter II of these Rules provides for the general provisions; Chapter III provides for the manner in which the taxes can be imposed; while Chapter IV provides for levying of rates; Chapter V relates the manner in which the fees can be imposed and Chapter VI provides for the manner in which a property assessed to tax could be revised. 34. On an overall reading of these Rules, it is clear that these Rules are essentially framed prescribing the manner in which taxes, rates and fees are to be collected and one chapter merely provides for general provisions. - 17 - NC: 2025:KHC:18244 WP No. 22941 of 2023 35. Since the Model Bye-laws of 2015 would be applicable to all the panchayats in relation to the power to control the erection of buildings, it is obvious that it is those model Bye-laws that would prevail over rather than the 2021 Rules, that have been framed for the purpose of regulating the manner in which the taxes, rates and fees are to be collected. 36. As already noticed above, Section 64 of the Act makes it clear that a person can erect a building only in the manner provided under the 2021 Rules and the permission to be granted and the fees to be levied should be as per the specified Bye-laws. 37. On a holistic complete reading of Section 64 of the Act therefore makes it clear that the power to regulate the erection of buildings will have to be governed by the Model Bye-laws of 2015 that are framed for this specific purpose i.e., for controlling the erection of buildings. - 18 - NC: 2025:KHC:18244 WP No. 22941 of 2023 38. If there are specific and express model Bye-laws framed to regulate the erection of buildings, a set of Rules which have been framed for imposition of taxes, rates and fees cannot be made applicable. It is to be stated here that even if there is a discrepancy or a contrary Rule in the Rules framed for collection of taxes, rates and fees, relating to the construction of buildings, it is the Model Bye-laws which have been made for granting permission for erection of buildings, which will have to be applied. 39. This would be on the basic principle that the Bye- laws are framed for a specific purpose by the Government would have to apply, as compared to contrary Rules framed for the purpose of imposition of collection of rates, taxes and fees. 40. It may also be pertinent to notice here that Rule (4) of the 2021 Rules also stipulate that in order to construct any building within the limits of Gram Panchayat, a person would have to make an - 19 - NC: 2025:KHC:18244 WP No. 22941 of 2023 application under Section 64 of the Act and it should be in the form prescribed under the Model Bye-laws of the year 2015. 41. It is to be stated here that only in respect of erection of a commercial, non-residential, business, industrial unit and agro-based manufacturing unit, or any person intending to start a commercial, non- residential business, industrial unit and agro-based manufacturing unit, an application in Form No.1 prescribed under the 2021 Rules will have to be made. 42. If Rules 4(1) and 4(2)8 of the 2021 Rules are read conjointly, it makes it clear that it is applicable only 8 4. Application form and documents- (1) Construction of building.-Under Section 64 of the Act any person intending to construct any building within the limits of Grama Panchayat area shall submit an application in the prescribed form for permission/license letter online or directly to the Grama Panchayat and shall be recorded in sakala software and the prescribed form shall be as per Karnataka Grama Swaraj and Panchayat Raj (Control of Zilla Panchayats, Taluk Panchayats and Gram Panchayats over Construction of Buildings) Model Bye-laws, 2015. (2) Commercial, non-residential business, industrial unit and agro-based manufacturing unit-Any person intending to start a commercial,non-residential business, industrial and agricultural-based manufacturing unit within the limits of the Gram Panchayat area under Sections 66,67,68, 69 and 70 of the Act. Application for license or permission letter in Form 1 shallbe submitted online or directly to the Gram Panchayat and recorded in Sakala software. - 20 - NC: 2025:KHC:18244 WP No. 22941 of 2023 in respect of those buildings mentioned in Rule 4(2) of 2021 Rules. 43. Since the erection of the building for public purposes, such as educational, religious and charitable, is not forthcoming in Rule 4(2) of 2021 Rules, it is obvious that the 2021 Rules can have no application. 44. As a result, the writ petition will have to be allowed and will have to be held that the Gram Panchayat was wrong in issuing a public notice as provided under Rule 4 of the 2021 Rules and the notice so issued, which is impugned in the writ petition, will have to be quashed and is accordingly quashed. 45. The Panchayat shall consider the application of the petitioner on merits in accordance with the manner as prescribed under the Model Bye-laws of 2015 and if the structure is in accordance with the specified (3) No Objection Certificate.- Any person intending to obtain a No Objection Certificate for the purpose of obtaining any electricity connection within thevillage panchayat area limits, for the purpose of land conversion, for thepurpose of obtaining a crusher license and for any other purpose (specifying the purpose)shall apply the application in Form 1 be submitted online or directly to the Grama Panchayat and recorded in Sakala software. - 21 - NC: 2025:KHC:18244 WP No. 22941 of 2023 Model Bye-laws, the Panchayat shall grant permission to the petitioner, at the earliest. 46. The said exercise shall be undertaken and completed within a period of two months from the date of receipt of a copy of this order. 47. The writ petition is accordingly allowed. 48. In view of the disposal of the petition, all the pending interlocutory applications, if any, shall stand disposed of. Sd/- (N S SANJAY GOWDA) JUDGE RK Ct: SN List No.: 1 Sl No.: 84