KMC Act: Cannot substitute provisions related to deviations, says High Court

The high court has said that a notice, under Section 308 of the Karnataka Municipal Corporation (KMC) Act, is not a substitute for a notice required to be issued under Section 321 (1) of the Act in cases of deviations from the plan in constructions or constructions that contravenes any of the provisions of the Act.

Justice Suraj Govindaraj said this while quashing a confirmation order issued by the Mangaluru City Corporation (MCC) in connection with a property.

In cases of constructions carried out in deviation from the plan or that contravenes the provisions of the KMC Act, the commissioner can issue a show-cause notice under Section 308 to the owner to carry out modifications. Section 321 is related to the demolition or alteration of buildings and under Section 321 (3), the commissioner can confirm the modifications cited in the notice issued under Section 321 (1), the court said.

In the case on hand, the commissioner had initially issued a notice under Section 308 and thereafter, the confirmatory order was issued under Section 321(3) of the KMC Act. The petitioner contended that notice had to be issued under Section 321(1). On the other hand, the MCC argued that the purport and intent of Section 308 and Section 321 are more or less the same inasmuch as the alteration of the work.

The court noted that the notice under Section 321 (1) of the KMC Act has to be issued after coming to a finding that there is noncompliance with the confirmatory order under Section 308 (3) of the KMC Act.

“I am of the considered opinion that a notice under Section 308 of the KMC Act is not a substitute for a notice that is required under sub-section (1) of Section 321 of the KMC Act. A separate notice under sub-section (1) of Section 321 of the KMC Act is required to be issued as a provisional order which can thereafter be confirmed under sub-section (3) of Section 321 of the KMC Act if compliance is not made with the aforesaid provisional order,” the judge said.

The court pointed out that in the case on hand, the MCC could not have straightaway jumped to a confirmatory order under Section 321 (3) as no notice was issued under Section 321 (1).

The court further noted that the city corporation had only issued a notice under Section 308 (1) and not confirmed by an order under Section 308 (3).

The court has reserved liberty to the corporation to take further action in terms of the observations made in the order.