Rajashekharappa vs State of Karnataka and Others

Ashok B. Hinchigeri, J.—The petitioner has filed the application for the sanctioning of building plans. As the respondent 3 is insisting for filing an affidavit in Form III as a precondition for the grant of approval for the building plan, this petition is instituted. Sri Sadiq N. Goodwala, learned Counsel for the petitioner submits that the affidavit in Form III is not prescribed by the Karnataka Municipal Corporations Act, 1976 (''the KMC Act'', for short) or the building bye-laws framed thereunder. He submits that this position has been clarified by the Deputy Director, Town Planning, vide his order dated 23-6-2009 (Annexure-G).

Sri G.I. Gachchinamath, learned Counsel for the respondent 3 submits that the insistence for the affidavit is on an uniform basis; it is not that it is being insisted only from the petitioner. He submits that under Section 299 of the KMC Act, it is open to the Corporation to call for any document. He submits that the filing of the affidavit is not infringing any of the rights of the petitioner.

Sri Ravi V. Hosamani, learned Additional Government Advocate submits that if the petitioner is not furnishing any wrong or incorrect information and is not violating any provision of law, then there should not be any hesitation for the petitioner to file the affidavit. The petitioner has no objection to comply with the ten conditions enumerated in Form III (H2). His only reservation is over the last paragraph of the said form which reads as follows:

The afore-extracted declaratory affidavit does not put the petitioner to prejudice; it only amplifies the consequence of his violating bye-laws and renders him to be proceeded against under the provisions of KMC Act and Indian Penal Code, 1860. If the petitioner does not commit any violation of law, he is nothing to be afraid of. On the other hand, if he commits the violation of any penal law, he would be inviting the prosecution even in the absence of the prescribed affidavit undertaking.

The affidavit undertaking is insisted in public interest. It would have the effect for deterring the intending applicants for the sanctioning of the building plans from giving any spurious information.

It is also worthwhile to refer to the Apex Court''s judgment in the case of Air India Ltd. Vs. Cochin Int., Airport Ltd. and Others, . The Apex Court has this to say in the late part of para 7:

"7......Even when some defect is found in the decision making process the Court must exercise its discretionary power under Article 226 of the Constitution of India with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene."

Following the aforesaid decision and as the insistence for the declaratory affidavit for the filing of a declaratory affidavit is in public interest, I refuse to interfere in the matter. This petition is dismissed. No order as to costs.