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SMT. KAVITHA JAIN v. THE COMMISSIONER

Karnataka High Court

Aug 17, 2023

Judgment

CaseIQ

Smart Summary (Beta)

Factual and Procedural Background

The petitioners, owners of a property situated at 2nd Cross Road, Ashokanagar, Bangashankari Extension, Bengaluru, commenced construction after obtaining plan sanction. The Bruhat Bengaluru Mahanagara Palike (BBMP) officials allegedly interfered with the construction, leading the petitioners to file a suit seeking an injunction restraining the Corporation officials from interference. An ex-parte interim injunction was initially granted but later vacated. Following the vacation, the BBMP issued a provisional order under Section 248(1) and (2) of the BBMP Act, 2020, on 16.12.2022, which the petitioners did not respond to. Subsequently, a confirmatory order under Section 248(3) was passed on 12.1.2023 by the Assistant Director of City Planning (South). The petitioners challenged these orders and a related notice before the High Court by filing the present writ petition under Articles 226 and 227 of the Constitution of India.

Legal Issues Presented

Whether the Assistant Director of City Planning (South), respondent No.2, had the authority to issue the provisional and confirmatory orders under Section 248 of the BBMP Act, 2020.
Whether the delegation of powers by the Zonal Commissioner to respondent No.2 was valid in the absence of rules made by the State Government under Section 74(d) of the BBMP Act, 2020.
Whether the orders issued by respondent No.2 under Section 248(1), (2), and (3) of the BBMP Act, 2020, can be quashed on grounds of lack of jurisdiction and improper delegation.
Whether civil courts have jurisdiction to entertain suits relating to statutory obligations performed by the Corporation under the BBMP Act, 2020, particularly when proceedings under Section 248 are pending.

Arguments of the Parties

Petitioners' Arguments

The provisional and confirmatory orders were issued by respondent No.2 who lacked authority under the BBMP Act, 2020, specifically Sections 248(1) and (2).
The Zonal Commissioner alone is empowered to issue such notices and orders; there was no valid delegation of powers to respondent No.2.
In absence of rules made by the State Government to enable delegation under Section 74(d), the delegation by the Zonal Commissioner was invalid.
Therefore, the provisional and confirmatory orders must be quashed as issued without jurisdiction.

Respondents' Arguments

Section 74(d) of the BBMP Act, 2020, empowers the Zonal Commissioner to delegate his powers to subordinate officers.
An officer order dated 27.7.2023 delegated powers to respondent No.2 and others, making the issuance of the provisional and confirmatory orders valid.
The exercise of powers by respondent No.2 under this delegation is proper, and the writ petition should be dismissed.
A process of formulation of rules by the State Government is underway to formalize such delegations.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court examined Section 74 of the BBMP Act, 2020, which empowers the Zonal Commissioner to perform certain functions, including the power to delegate any of his ordinary powers, duties, and functions to subordinate officers, but only "subject to the rules made by the State Government." The Court noted that no such rules have been made by the State Government to enable the Zonal Commissioner to delegate his powers.

Since the office order delegating powers to respondent No.2 was issued in the absence of any enabling rules, the Court held that such delegation was invalid. Consequently, the provisional and confirmatory orders issued by respondent No.2 under Section 248 of the Act were without jurisdiction and liable to be quashed.

The Court further observed that until the State Government frames the requisite rules, only the Zonal Commissioner can exercise powers under Section 248. The Court also highlighted that civil courts do not have jurisdiction over matters concerning statutory obligations performed by the Corporation under the BBMP Act, particularly when proceedings under Section 248 are involved, and that such jurisdiction lies exclusively with the writ courts.

In light of these findings, the Court allowed the writ petition and issued directions to ensure proper exercise of powers under the Act.

Holding and Implications

The Court's final decision is as follows:

The writ petition is allowed.
The provisional order dated 16.12.2022 and confirmatory order dated 12.1.2023 issued by respondent No.2 are quashed.
The notice dated 29.4.2023 issued by respondent No.3 is also quashed.
The BBMP Commissioner (respondent No.1) is directed to instruct all officers that only the Zonal Commissioner can exercise powers under Section 248 of the BBMP Act, 2020, and no other officer shall exercise such powers until rules are made.
The Registrar (General) is directed to inform all District Judges in Bengaluru that courts do not have jurisdiction over matters under Section 248(1) and (2) of the BBMP Act, and only writ courts have jurisdiction in such cases.

The decision directly affects the parties by invalidating the orders issued without proper authority and clarifies the limits of delegation under the BBMP Act, 2020. No new precedent beyond the immediate facts and statutory interpretation was established.

Show all summary ...

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NC: 2023:KHC:29124

WP No. 9934 of 2023

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 17^TH DAY OF AUGUST, 2023

BEFORE

THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 9934 OF 2023 (LB-BMP)

BETWEEN:

1. SMT. KAVITHA JAIN

W/O MAHAVEER JAIN,

AGED ABOUT 43 YEARS,

2. SRI. MAHAVEER JAIN

S/O AMBALAL JAIN

AGED ABOUT 49 YEARS,

BOTH ARE R/AT NO. 13/1,

4^THFLOOR, 11^THMAIN ROAD,

2^NDBLOCK, BSK 1^STSTAGE,

HANUMANTHANAGAR,

BENGALURU 560050

…PETITIONERS

(BY SRI. H.E., RAMESHA., ADVOCATE FOR

SRI. LAKSHMISHA B S.,ADVOCATE)

AND:

1. THE COMMISSIONER

BRUHAT BENGALURU MAHANAGARA PALIKE

N.R SQUARE

BENGALURU 560002

2. THE ASSISTANT DIRECTOR OF CITY PLANNING (SOUTH)

COMMERCIAL COMPLEX,

BRUHAT BENGALURU MAHANAGARA PALIKE,

9^THCROSS ROAD, 9^THMAIN ROAD,

2^NDBLOCK, JAYANAGARA

BENGALURU 560 011

3. THE ASSISTANT EXECUTIVE ENGINEER

BRUHAT BENGALURU MAHANAGARA PALIKE,

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GIRINAGAR SUB DIVISION,

BENGALURU 560085

…RESPONDENTS

(BY SRI. JAGADEESWARA N R.,ADVOCATE FOR R1 TO R3)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND

227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN

THE NATURE OF CERTIORARI QUASHING THE ORDER DTD.

CONFIRMATION ORDER DTD. 12.1.2023, BEARING

NO.SA.NA.YO(DA)/CO/75/2022-23, PASSED BY THE RESP. 2. I.E. ANNEXURE-A. AND ETC.

THIS WRIT PETITION, COMING ON FOR ORDERS, THIS DAY,

THE COURT MADE THE FOLLOWING:

ORDER

1. The petitioners are before this Court seeking for the following reliefs:

a. To issue a writ in the nature of certiorari quashing the order dated confirmation order dated 12.01.203, bearing No. Sa.Na.Yo(Da)/Co/75/2022-2023, passed by the Respondent No.2 i.e. Annexure-A;

b. To issue a writ in the nature of certiorari quashing the notice bearing No. Sakaania (Gina)/P.R/16-2023-24, dated 29.04.2023, issued by the Respondent No.3 i.e. Annexure-B

c. Such other relief/s as this Hon'ble Court deems fit under the facts and circumstances of the present case.

2. The petitioner claims to be the owner of Municipal No.40 old BDA Site No.638, PID No.53-127-40, situated at 2^ndCross Road, Ashokanagar, Bangashankari Extension, Old Ward No.53, New

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Ward No.164. The vendor of the petitioner had obtained a plan sanction vide LP No.BBMP/Ad.Com/ SUT/0565/2019-2020 dated 20.9.2019 at Annexure- D which came to assigned in favour of the petitioner on sale of the property. When the petitioner had commenced the construction, the respondents allegedly sought to interfere with the construction as such the petitioner has filed a suit in OS No.26991/2022 before 74^thCity Civil & Session Judge, Mayo Hall Unit, Bangalore seeking for injunction restraining the Corporation officials from interfering with such construction.

3. An ex-parte ad-interim order of injunction having been granted, the Corporation filed a written statement and objections. Thereafter the interim order came to be vacated on 16.12.2022.

4. On such vacation of interim order, the provisional order came to be issued under Section 248(1) and

(2) on 16.12.2022, since the petitioner did not reply to the same, the confirmatory order under Section

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248(3) came be passed on 12.8.2023. It is aggrieved by the said order, that the petitioner is before this Court.

5. The contention of the learned counsel for the petitioner is that the provisional and confirmatory order have been issued by the respondent No.2- Assistant Director of City Planning (South) who has no such authority to issue such notice under Section 248(1) and 248 (2) in as much as in terms of the said provisions it is the Zonal Commissioner who is empowered to issue such notice as also confirmatory order. He submits that there being no particular delegation to respondent No.2, respondent No.2 could not have issued such a provisional order. The very basis for the action initiated against the petitioner being without jurisdiction, issued by a person without authority, the confirmatory order could not be passed and as such he submits that both the said orders are required to be quashed.

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6. Sri.N.R.Jagadeeshwara., learned counsel for respondents No.1 to 3 would submit that in terms of Section 74(d) of the BBMP Act 2020 (for short "the Act of 2020), the Zonal Commissioner could delegate his authority to the any official of the corporation subordinate to him any of the ordinary powers, duties and functions as provided in the Act and as such he submits that by an officer order dated 27.7.2023, the said powers have been delegated to several officers including respondent No.2, hence he submits that the exercise of powers by respondent No.2 under the said delegation is proper and correct and the petition is required to be dismissed.

7. Heard Sri.H.E.Ramesha., learned counsel appearing for the petitioner and Sri.N.R.Jagadeeshwara., learned counsel appearing for the respondents.

8. Section 74 is reproduced hereunder for easy reference:

74. Powers and Functions of the Zonal Commissioner:-

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The Zonal Commissioner shall perform the following functions, namely:-

(a) He shall be the nodal authority for carrying out the civic administration on those matters specified under this Act for the zone under his jurisdiction;

(b) He shall supervise, direct and coordinate the ward committees and the area sabhas on such matters as specified under this Act;

(c) He shall undertake functions as directed by the Chief Commissioner or Mayor from time to time; and

(d) Subject to the rules made by the State Government, the Zonal Commissioner may delegate to any officer of the Corporation subordinate to him any of his ordinary powers, duties and functions as provided under the Act.

9. A perusal of the above provision indicates that it is only subject to the rules made by the State Government that the Zonal Commissioner may delegate to any officer of the corporation subordinate to him any of his ordinary powers, duties, functions provided in the Act.

10. That is to say, that as a precursor to the Zonal Commissioner delegating his power, there would have to be the rules made by the State Government to enable the Zonal Commissioner to act in terms of the said rules and delegate his powers, the rules being a check and balance for such delegation.

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11. Admittedly, there are no rules which have been made by the State Government in this regard and the office order has been issued by the Zonal Commissioner delegating his powers to respondent No.2 and certain other officers in absence of such Rules. Thus, without such rules being made by the State Government no delegation could be made by Zonal Commissioner and until such rules are made, it is only for the Zonal Commissioner to exercise his powers prescribed under the Act more particularly under Section 248 of the Act of 2020.

12. At this stage, Sri.N.R.Jagadeeshwara., learned counsel for respondents submits that there is a process of formulation of rules is underway and it would be so done at the earliest. This matter is of considerable importance in as much as there are several circumstances where powers have to be exercised by Zonal Commissioner including that under section 248 of the BBMP Act when there is a violation of plan sanction or illegal construction.

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Thus, in all those cases it is but required that the Zonal Commissioner exercise his powers and no other officer of the corporation exercise such powers until the rules are framed. In that view of the matter, a direction would also have to be issued to the Chief Commissioner and the Zonal Commissioner to instruct all concerned officers of the corporation not to exercise any powers under Section 248 (1) (2) and (3), since it is only the Zonal Commissioner who can exercise such powers.

13. One other aspect which has come to light in the above matter is as regards the suit which had been filed by the petitioner against the corporation, when proceedings were to be initiated by the corporation under the BBMP Act. This matter relating to a statutory performance of obligation by the Corporation, no court including the Civil Court would have jurisdiction to entertain or pass any orders in such proceedings. As such general instructions would also have to be issued in this regard.

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14. In view of the above, I pass the following;

ORDER

i. The writ petition is allowed.

ii. A certiorari is issued, the provisional order dated 16.12.2022 and confirmatory order dated 12.1.2023 passed by respondent No.2 are hereby quashed.

iii. Consequently, the notice bearing NO.SA.NA.YO(DA)/CO/75/2022-2023 dated 29.4.2023 at Annexure-B is also quashed.

iv. Respondent No.1 is directed to instruct all officers of the corporation that it is the Zonal Commissioner alone who can exercise powers under Section 248 and no other officer could exercise powers thereunder.

v. The Registrar (General) is directed to forward a copy of this order to all District Judges Exercising jurisdiction in the city of Bangalore, informing them that whenever the powers are exercised under Section 248 (1) and (2) of the

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BBMP Act, the said Court would not have jurisdiction to exercise in such matter, since, it is only the writ court which can exercise jurisdiction in those matters.

vi. A copy of this order is to also be sent to the 74^thCity Civil & Session Judge, Mayo Hall Unit, Bangalore.

Sd/-

JUDGE

List No.: 1 Sl No.: 10