Karnataka High Court

The Commissioner vs B. Susheela on 2 June, 2022

Bench: R. Nataraj

                            1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 2ND DAY OF JUNE, 2022

                         BEFORE

            THE HON'BLE MR.JUSTICE R.NATARAJ

     WRIT PETITION NO.10973 OF 2015 (LB - BMP)

BETWEEN:

1.     THE COMMISSIONER,
       THE BANGALORE BHRUHAT
       MAHANAGARA PALIKE,
       NR SQUARE,
       BANGALORE - 560 001.
       REPRESENTED BY ITS COMMISSIONER.

2.     THE ASSISTANT EXECUTIVE ENGINEER,
       VASANTHNAGAR SUB DIVISION,
       NEAR DHANDU MARAMMA TEMPLE,
       BBMP, SHIVAJI CIRCLE,
       BANGALORE - 560 055.
                                         ...PETITIONERS
(BY SRI.PRASHANTH CHANDRA S.N., ADVOCATE)

AND:

1.     B.SUSHEELA,
       W/O LATE DR.M.Y.SRIKUMAR,
       AGED ABOUT 61 YEARS,

2.     SRI.ARUN SRIKUMAR,
       S/O LATE DR.M.Y.SRIKUMAR,
       AGED ABOUT 41 YEARS,

3.     SRI.DEEPAK SRIKUMAR,
       S/O LATE DR.M.Y.SRIKUMAR,
       AGED ABOUT 34 YEARS,
       ALL ARE RESIDING AT
       #108, NEXT TO SYNDICATE BANK,
                             2


     ST.JOHNS ROAD,
     BENGALURU - 560 042.
                                        ...RESPONDENTS
(BY SRI.ANIL KUMAR SHETTY, ADVOCATE FOR R1 TO R3)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER DATED 31.7.2014, PASSED
BY THE KARNATAKA APPELLATE TRIBUNAL IN APPEAL
NO.445/2013 VIDE ANNEXURE - D AND BY CONFIRMING THE
ORDERS PASSED BY THE ASSISTANT EXECUTIVE ENGINEER,
SHANTHINAGAR SUB-DIVISION AND DELEGATED AUTHORITY
TO THE COMMISSIONER, BANGALORE, MAHANAGARA PALIKE,
DATED 6.5.2013 AT ANNEXURE - B AND ETC.,

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

                         ORDER

The petitioners have challenged the order dated

31.07.2014 passed by the Karnataka Appellate Tribunal

(henceforth referred as 'Tribunal') in Appeal No.445/2013,

by which the Tribunal allowed the appeal and set aside the

order of confirmation issued by the petitioners and

remitted the case back to the concerned authority for

reconsideration.

2. It is stated that the petitioners had sanctioned

a building plan enabling the respondents to put up

construction on a property bearing Municipal No.77, PID

No.79/43/77. The petitioners allege that the respondents

have undertaken construction in absolute violation of the

plan and the bylaws, which compelled the petitioners to

initiate proceedings under Section 321(1) of the Karnataka

Municipal Corporations Act, 1976 (hereinafter referred to

as 'KMC Act' for short). The respondents did not respond to

the provisional order which compelled the petitioners to

pass an order of confirmation under Section 321(3) of the

KMC Act. This was challenged by the respondents before

the Tribunal under Section 443A of the KMC Act. It was

contended before the Tribunal that the provisional order

under Section 321(1) of the KMC Act was not served upon

the respondents and that the petitioner No.1 could not

have delegated the quasi-judicial power under Sections

321(1), 321(3) and 462 of the KMC Act to the respondent

No.2. It was also contended that the office order issued by

petitioner No.1 delegating the authority to the petitioner

No.2 was not approved by the standing committee of the

Corporation and therefore, the petitioner No.2 had no

authority to initiate action against the respondents.

3. The Tribunal considered the above and held

that the petitioners had failed to serve the provisional

order to the respondents and also that the petitioner No.2

was not competent to initiate proceedings under Sections

321(1) and 321(3) of the KMC Act on behalf of the

petitioner No.1 as the office order dated 06.05.2013

delegating power to petitioner No.2 was not approved by

the standing committee. Hence, the Tribunal allowed the

appeal and set aside the order of confirmation and

remitted the case for reconsideration.

4. Learned counsel for the petitioners submitted

that the provisional order was served by affixing a copy of

the order on the building constructed by the respondents

at the site and therefore, there was a deemed service of

notice. He also contended that a Division Bench of this

Court in the case of BRUHATH BENGALURU

MAHANAGARA PALIKE, BANGALORE AND ANOTHER

VS. MAHTANI VENTURES, BANGALORE reported in

2013 (5) Kar. L.J. 575 had held that the powers of the

Commissioner under KMC Act, 1976 though being quasi-

judicial in nature, could still be delegated as such,

delegation was permitted under the Act. Learned counsel

invited the attention of the Court to paragraph Nos.19, 20

and 21 of the aforesaid judgment. He further contended

Section 66 of the KMC Act, 1976 confers right on the

Commissioner to delegate any of his ordinary powers

which includes the power specified under

Schedule III. The learned counsel therefore submitted that

the Commissioner is entitled to delegate any or all his

ordinary powers and therefore, the petitioner No.1 has

rightly issued an office order dated 29.10.2011 delegating

the power to initiate action under Sections 321(1), 321(2),

321(3) and 462 of KMC Act upon the respective Assistant

Executive Engineers of the concerned ward.

5. Learned counsel for the respondents on the

other hand contended that the respondents was not

residing at the address where the provisional order was

allegedly served and therefore, the respondents could not

be deemed to be served. He further submitted that the

petitioners were aware of the residential address of the

respondents as disclosed in the application for sanction of

building plan and therefore, they had deliberately not

served the provisional order at the address mentioned. He

further contended that Section 64(3) of the KMC Act, 1976

makes it mandatory for the Commissioner with the

approval of the standing committee concerned to empower

any officer to exercise, perform and discharge any power,

duty or function in his control and subject to his revision

on such conditions/limitations. He therefore submitted that

the office order placed on record by the petitioner was not

approved by the standing committee concerned and

therefore, the same cannot be given effect to. Insofar as

the right to delegate all powers including the powers

specified under Schedule III under Section 66 of the KMC

Act, the learned counsel for the respondents submitted

that the question whether quasi-judicial functions could be

delegated by the Commissioner came up for consideration

before a Co-ordinate Bench of this Court in

W.P.No.14459/2019, where it was held that quasi-judicial

powers cannot be bartered away contrary to the duties and

obligations imposed upon the petitioner No.1 in terms of

the statute. He further contended that the question

whether the quasi-judicial function could be delegated to a

subordinate came up for consideration before the

Coordinate Bench of this Court in PEPSICO

RESTAURANTS INTERNATIONAL (INDIA) PVT. LTD.,

NEW DELHI AND ORS. VS. CORPORATION OF THE

CITY OF BANGALORE AND ORS. Reported in ILR 1996

KAR. 1357, wherein it was held that the Commissioner

cannot delegate his quasi-judicial functions in favour his

deputy or subordinates.

6. Learned counsel for the petitioners did not

dispute the fact that the respondents had furnished his

address at the time of filing an application for sanction of

building plan. If that be so, it was incumbent upon the

petitioners to serve the provisional order not only at the

site but also at the residential address that were available

in the file of the petitioners. The Tribunal after going

through the records had held as follows:

"14. Apart from this lacuna, it is the grievance of the appellant that no sufficient opportunity has been given to him to reply. It is his specific contention that the notice and confirmation order have been issued on the same day. There is no any believable evidence on the side of the respondents to prove that the notice under Sec.321(1) was actually served within the reasonable time from the date of its issuance and after giving sufficient opportunity the confirmation order has been passed. We would like to say that no enquiry report is filed by the respondents before passing the confirmation order. Therefore, it is clear from the available documents that the respondent authority has not taken the action by implementing the power in accordance with law. The allegation of deviation has to be proved by the authority for the purpose of taking proper action against the appellant. At this stage it is necessary to refer that the respondents have given an opportunity to the appellant in the impugned order to rectify the mistakes alleged to be committed by the appellant. In this regard the learned counsel for the appellant referred to Sec.321-A of the Act. Therefore it is clear from the above discussion that the authority has utterly failed to prove that the allegation made by it under Sec.321(1) which has been confirmed under Sec.321(3) of the Act are true one. Under such circumstances we feel that the grounds urged by the appellant regarding the authority of taking action

against him by the AEE and the legality of the allegation made against the appellant have not been proved and further no sufficient opportunity has been given to the appellant either to convince the authority or to make it correct by resorting under Sec.321-A of the Act. Therefore we feel that the notice in ¸ÀPÁ¤C/ªÀ£À/¦N/40/13-14

¢:30-03-2013 followed by confirmation order dated 6-5- 2013 are liable to be set aside and the matter has to be remitted back to the authority for reconsideration and also for proper action after satisfying about the deviation or violation of byelaw. With these observations, we answer the point No. 1 in the affirmative."

7. There is no evidence to establish that the

provisional order was duly served upon the respondents

and therefore, the Tribunal was right in holding that the

petitioners have not taken proper and effective measures

to ensure service of notice of the provisional order upon

the respondents. Insofar as the contention of the

petitioners that the Commissioner is authorized to delegate

the powers under Sections 321(1), 321(2), 321(3) and

462 of KMC Act, 1976, a Division Bench of this Court in the

case of MAHTANI VENTURES (Supra) after considering

Sections 64, 66 and 67 of the KMC Act, 1976 held as

follows:

"21. In the present case, apart from the construction of the word "include" we cannot overlook the background against which the amendment in 1994 was made. At that point of time, there were judgments of this Court in the filed, wherein while interpreting Section 66, as it was then standing, this Court had taken a view that the powers specified under Schedule III cannot be delegated for the reasons recorded in those judgments. The Legislature therefore, amended the Section and simply clarified that this power also includes the power specified in Schedule III which is quasi-judicial in nature. The Legislature in our opinion therefore, has clearly indicated or made its intent clear that "ordinary powers" also include the powers which are in the nature of quasi-judicial.

21.1 We find no reason as to why the Commissioner cannot delegate his power under sub-section (2) of Section 343 of the KMC Act, which is quasi-judicial in nature, to any other officer of the Corporation in exercise of his powers of delegation vested in him under Section 66 of the KMC Act. We have no hesitation in holding that Section 66 of the KMC Act expressly permit the Commissioner to delegate even quasi-judicial powers, including the power to cancel the trade licence. The question framed by us, accordingly stands answered in the affirmative."

8. A perusal of the office order issued by the

petitioner No.1 would indicate that the Commissioner had

indeed delegated his ordinary power to the concerned

Assistant Executive Engineer of the concerned Ward and

therefore, it cannot be gainsaid that the petitioner No.1

had no authority to delegate his powers to his deputy or

subordinate officer. In that view of the matter, the

observation passed by the Tribunal warrants interference.

It is therefore held that the petitioner No.1 was entitled to

delegate his ordinary powers under the Act to his

subordinate officers.

9. In view of the above, this writ petition is