- 1 - NC: 2025:KHC-D:2053-DB WA No. 100067 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 1ST DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA WRIT APPEAL NO. 100067 OF 2025 (LB-RES) BETWEEN: SRI. MALLIKARJUN S/O HOLEBASAPPA SAVALIGEPPANAVAR, AGED. 51 YEARS, OCC. BUSINESS, R/O. C/O. SOMASHEKHAR KOTUR, RAVIVARPETH, DHARWAD. NOW R/O. NO.18, 6TH CROSS, 1ST MAIN, ISRO LAYOUT, BANGALORE- 78. …APPELLANT (BY SRI. RAMACHANDRA A MALI, ADV) AND: 1. THE DY. COMMISSIONER DHARWAD DISTRICT, DHARWAD-01. 2. THE COMMISSIONER HUBLI DHARWAD MUNICIPAL CORPORATION, DHARWAD- 580001. 3. THE ASSISTANT COMMISSIONER DIVISION ZONAL OFFICE NO.2, HUBLI DHARWAD MUNICIPAL CORPORATION, DHARWAD- 580001. 4. SRI. KIRAN S/O ISHWAR KOTUR, AGED. 55 YEARS, OCC. BUSINESS, R/O. SARASWATPUR, DHARWAD-02. Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:2053-DB WA No. 100067 of 2025 5. SRI. ARUN ISHWAR KOTUR, AGED. 52 YEARS, OCC. BUSINESS, R/O. GANDHINAGAR, 4TH MAIN, 4TH CROSS, DHARWAD- 02. 6. HESCOM, REP. BY AEE, DHARWAD, CITY DHARWAD. 7. KARNATAKA URBAN WATER SUPPLY AND DRAINAGE BOARD, REP. BY IN-COMMISSIONER, DHARWAD-01. 8. STATE OF KARNATAKA REP. BY HOME DEPT. BY IN-SECRETARY, BENGALURU-01. …RESPONDENTS (BY SRI. SHARAD MAGADUM, AGA FOR R1 & R8, SRI. G.I. GACHCHINAMATH, ADV FOR R2 & R3, SRI. B.V. SOMAPUR, ADV FOR C/R4 & R5, SRI. B.S. KAMATE, ADV FOR R6, SRI. DAYANAND BANDI, ADV FOR R7) THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH COURT ACT, 1961, PRAYING THIS HON BLE COURT TO CALL FOR THE RECORDS IN W.P.NO.100376/2025 (LB-RES) ON THE FILE OF THE LEARNED SINGLE JUDGE OF THIS HON BLE COURT AND SET ASIDE THE IMPUGNED ORDER DTD. 30-01- 2025 MADE IN THE ABOVE WRIT PETITION PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON BLE COURT AS THE SAME BEING ERRONEOUS AND NOT SUSTAINABLE IN LAW AND CONSEQUENTLY DISMISS THE WRIT PETITION W.P.NO.100376/2025 (LB-RES) ON THE FILE OF THE LEARNED SINGLE JUDGE AS THE SAME BEING DEVOID OF MERITS IN THE INTEREST OF THE JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 3 - NC: 2025:KHC-D:2053-DB WA No. 100067 of 2025 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This writ appeal is filed against an interim order dated 30.01.2025 passed by the learned Single Judge in W.P.No.100376/2025, wherein respondent Nos.4 and 5 have filed the writ petition seeking A writ of mandamus directing respondent No.1 to take action, as per the law in respect of the building constructed by the appellant; and also issue direction to respondent No.1 to take action against the concerned officials of HDMC, Dharwad for non- taking steps against the appellant in construction of the building; and direct respondent No.1 to make videography of the action of demolition and produce the same before the court; it is also prayed that, heavy cost to be imposed on the appellant, HDMC officials and to be utilized for educational public awareness towards the law and legal system. 2. On 21.01.2025, the learned Single Judge passed the following order. - 4 - NC: 2025:KHC-D:2053-DB WA No. 100067 of 2025 “1. Learned AGA accepts notice for respondent No.1. Sri.G.I.Gachchinmath, learned counsel is directed to accept notice for respondents No.2 and 3. 2. Issue notice to respondent No.4 returnable by 20.02.2025. 3. Sri.G.I.Gachchinmath, learned counsel is directed to obtain instructions and make his submission as to what action has been taken pursuant to confirmatory order passed under subsection (3) of Section 321 of the Municipal Corporations Act, dated 15.11.2024 at Annexure-H7 to the petition. 4. Learned counsel for the petitioner is directed to furnish two sets of copies of the petition along with annexures on the counsel for the respondents. 5. Relist on 28.01.2025.” 3. Though the learned Single Judge has directed to re-list the writ petition on 28.01.2025, before service of the notice to the appellant, the learned Single Judge has passed the impugned order dated 30.01.2025 directing the respondent-Corporation to implement the confirmatory order issued under Sub-section (3) of Section 321 of the Municipal Corporation Act (hereinafter referred to as ‘the Act’ for short) by following all applicable procedures, rules and requirements. The same shall be reported by respondent No.7 therein to the writ court. Respondent - 5 - NC: 2025:KHC-D:2053-DB WA No. 100067 of 2025 No.1 issued a communication to the appellant on 31.01.2025 directing the appellant to pull down the portion of the building constructed within 02.02.2025 at 6.00 a.m. Hence, the appellant has filed this writ appeal. 4. Heard the learned counsel for the appellant and also the learned counsel for respondent Nos.4 and 5. 5. Learned counsel for the appellant submits that, though the notice to the appellant was issued and it was returnable by 20.02.2015, before the service of notice to the appellant, the learned Single Judge has passed the impugned order directing respondent No.2 to implement the confirmatory order passed under Sub-section (3) of Section 321 of the Act. He submits that the appellant aggrieved by the confirmatory order, preferred a review petition before the Commissioner. He submits that no opportunity was provided to the appellant before passing the impugned order. The impugned order passed by the learned Single Judge is in violation of the principles of - 6 - NC: 2025:KHC-D:2053-DB WA No. 100067 of 2025 natural justice. Hence, on these grounds, he prays to allow the appeal. 6. Per contra, learned counsel for respondent Nos.4 and 5 submits that the appellant has constructed the building in violation of the sanctioned plan. He submits that respondent Nos.4 and 5 submitted several representations to respondent No.2 since 2018, and respondent No.2 passed the confirmation order. Despite passing the confirmatory order, respondent No.2 has not implemented the confirmatory order. He submits that the construction undertaken by the appellant is causing nuisance and he has encroached upon the property of respondent Nos.4 and 5. Hence, on these grounds, he prays to dismiss the writ appeal. 7. Perused the records and considered the submission of the learned counsel for the parties. 8. It is not in dispute that the appellant has undertaken the construction work. Respondent Nos.4 and - 7 - NC: 2025:KHC-D:2053-DB WA No. 100067 of 2025 5 have lodged a complaint against the appellant alleging that the appellant has undertaken the construction work in violation of the sanctioned plan. Respondent Nos.4 and 5 have submitted several representations to respondent No.2 to take appropriate action against the appellant. Despite submitting several representations, respondent No.2 has not taken any action against the appellant. Further, the provisional order was passed under Sub- section (1) of Section 321 of the Act. Thereafter, a show- cause notice was issued under Section 321(2) of the Act, and the confirmatory order was passed under Section 321(3) of the Act on 15.11.2024. Respondent No.2 directed the appellant to remove the portion of illegal construction undertaken by him. Despite passing the confirmatory order, the appellant neither challenged the confirmatory order nor complied with the confirmatory order. Learned counsel for the appellant submits that today the appellant filed a review before the concerned authority. Respondent Nos.4 and 5 requested respondent No.2 to implement the confirmatory order. Respondent - 8 - NC: 2025:KHC-D:2053-DB WA No. 100067 of 2025 No.2 did not implement the confirmatory order. Respondent Nos.4 and 5 have approached this court in W.P.No.100376/2025 seeking a writ of mandamus for implementation of the confirmatory order. The learned Single Judge issued notice to the appellant, returnable by 20.02.2025, and ordered to list the writ petition on 28.01.2025. 9. From the perusal of the records, it discloses that notice has not been duly served on the appellant and the matter was listed on 30.01.2025. On that day, the learned Single Judge directed respondent No.2 to implement the confirmatory order issued under Sub- section (3) of Section 321 of the Act. Pursuant to the order dated 30.01.2025, respondent No.2 has issued a communication intimating the appellant that the Corporation will demolish the building on 02.02.2025 at 6.00 a.m. The order passed by the learned Single Judge is in violation of the principles of natural justice. No opportunity was provided to the appellant to put forth his - 9 - NC: 2025:KHC-D:2053-DB WA No. 100067 of 2025 case before the learned Single Judge. The communication dated 31.01.2025 issued by respondent No.2 is in violation of the principles of natural justice and it requires reconsideration by the learned Single Judge. Accordingly, we proceed to pass the following; ORDER The writ appeal is disposed of. Appellant is directed to appear before the learned Single Judge on 05.02.2025. Respondent No.2 is directed not to precipitate the matter, till 05.02.2025. Learned counsel for respondent Nos.4 and 5 also undertakes not to precipitate the matter till 05.02.2025. Undertaking is placed on record. Office is directed to list W.P.No.100376/2025 before the learned Single Judge on 05.02.2025. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE MBS CT: BSB List No.: 3 Sl No.: 1