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 2ndCross 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 74thCity 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 74thCity Civil & Session Judge, Mayo Hall Unit, Bangalore.
Sd/-
JUDGE
SR
List No.: 1 Sl No.: 10