Karnataka High Court
Mrs Meher Cyrus Unvalla vs Medical Officer on 16 August, 2017
Author: Vineet Kothari
Bench: Vineet Kothari
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 16th DAY OF AUGUST 2017
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION No.26109/2017 &
No.30545/2017(LB-BMP)
BETWEEN:
1. MRS. MEHER CYRUS UNVALLA
AGED ABOUT 68 YEARS,
W/O MR.CYRUS. J.UNVALLA,
RESIDING AT NO.39, VITTAL MALLYA ROAD,
BANGALORE-560001.
2. LE-JARDIN,
1/10, HANUMANTHAPPA LAYOUT,
HALASURU ROAD, BANGALORE-560042.
REPRESENTED BY ITS
PARTNER MS. SHAHINEH MANSOORIAN
...PETITIONERS
(BY SRI. SUNDARAMURTHY W.M., ADV.)
AND:
1. MEDICAL OFFICER
SHIVAJI NAGAR CIRCLE,
BRUHAT BANGALORE MAHANAGARA PALIKE
QUEENS ROAD, BANGALORE-560052.
2. THE COMMISSIONER
BRUHAT BANGALORE MAHANAGARA PALIKE,
N.R.SQUARE, BANGALORE-560002.
3. STATE OF KARNATAKA
BY ITS CHIEF SECRETARY
M.S.BUILDING, BANGALORE-560001.
...RESPONDENTS
(BY SMT. WAHIDA., HCGP FOR R3,
SRI. SHIVANANDA METI, ADV. FOR R1 & R2)
Date of Order 16-08-2017 W.P.No.26109/2017 & No.30545/2017
Mrs. Meher Cyrus Unvalla & Anr.Vs. The Medical Officer & others.
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THESE W.Ps. ARE FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO, QUASH THE
ORDER DATED 18.05.2017 VIDE ANNEX-A ISSUED BY THE R-1
& GRANT AN INTERIM ORDER TO STAY OF OPERATION OF THE
ORDER DATED 18.05.2017 ISSUED BY R-1 VIDE ANNEX-A.
THESE W.Ps. COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Mr. Sundaramurthy W.M., Adv. for Petitioners Ms.Wahida, HCGP for R3 Mr.Shivananda Meti, Adv. for R1 & R2
1. The petitioner is aggrieved by the Notice issued by the Respondent-Health Medical Officer, BBMP, threatening to close the commercial shop, a furniture showroom, which was leased out by Petitioner No.1- Mrs. Meher Cyrus Unvalla to the tenant Petitioner No.2
- Le-Jardin, about a decade ago.
2. The impugned Notice referred to the directions of the Division Bench of this Court passed in W.P.No.3676/2008 & connected matters, a PIL petition, informing the petitioners that since the commercial establishments in the residential localities Date of Order 16-08-2017 W.P.No.26109/2017 & No.30545/2017 Mrs. Meher Cyrus Unvalla & Anr.Vs. The Medical Officer & others.
3/11was not allowed as per the amended Zoning Regulations and Government guidelines dated 20.03.2015, due to inconvenience and trouble caused to the general public and disturbing the atmosphere, the petitioners should remove such commercial activity from the site in question, failing which, the same will be closed down and the criminal proceedings will be initiated against the owners and tenants.
3. The petitioners before filing any explanation or response to the said Show Cause Notice has prematurely approached this Court by way of present writ petitions, which was filed on 15.06.2017.
4. The learned counsel for the petitioners submitted that in view of the imminent threat of the closure of the establishment, it compelled the petitioners to approach this Court by way of present writ petitions.
Date of Order 16-08-2017 W.P.No.26109/2017 & No.30545/2017 Mrs. Meher Cyrus Unvalla & Anr.Vs. The Medical Officer & others.
4/115. On the other hand, learned counsel for the Respondents-BBMP has sought to justify the said Notice on account of the directions of this Court passed in W.P.No.3676/2008 & connected matters in a PIL petition, which was decided on 19.02.2014 with the following directions:-
"3. On the last occasion, learned senior counsel appearing for the BDA stated that the BDA has considered the matter in detail and it has proposed certain amendments to the Master Plan particularly Zoning Regulations pertaining to residential and residential mixed areas. Today, an affidavit has been filed by the Commissioner, BDA detailing the proposals to amend the Zoning Regulations. Paragraphs 2 and 3 of the said affidavit read as under:-
"2. I state that the BDA vide its resolution No.37/2014 dated 27.01.2014 has proposed to amend Zoning regulations providing for the following:
i) That no commercial activity of whatsoever nature shall be allowed in residential main and residential mixed zones in the three rings, namely Date of Order 16-08-2017 W.P.No.26109/2017 & No.30545/2017 Mrs. Meher Cyrus Unvalla & Anr.Vs. The Medical Officer & others.5/11
Ring No.1, Ring No.2 and Ring No.3, if road width is less than 40 feet.
ii) That only ancillary usages mentioned in the resolution shall be permitted in residential main and residential mixed zones in Ring No.1 and Ring No.2 up to 20% of the built up area or 50 Sq.Mtrs. whichever is lower provided the width of the road is above 40 feet.
iii) In Ring No.3, the ancillary usages may be permitted as the main use in residential main and in residential mixed zones if the plot size is more than 1000 Mtrs. having frontage of 10 mtrs. or more and if the width of the road is more than 60 feet.
A copy of the resolution No.37/2014 dated 27- 01-2014 along with its English translation is annexed to this affidavit.
3. I submit that the amended regulations will be forwarded to the Government and once the Government carries out the proposed amendment, the BDA assures this Hon'ble Court that the resolution shall be implemented strictly in its letter and spirit."
4. Learned senior counsel appearing for the BDA submits that the resolution along with the proposals to amend the Zoning Regulations would be forwarded to the State Government Date of Order 16-08-2017 W.P.No.26109/2017 & No.30545/2017 Mrs. Meher Cyrus Unvalla & Anr.Vs. The Medical Officer & others.
6/11which could consider the same and thereafter notify the Regulations which would be in effect and amendment to the Master Plan 2015.
5. Learned Additional Government Advocate appearing for the State submits that if the said proposals are sent to the State Government, the same would be considered and notified within a period of three months from date of submission of the proposals by the BDA to it having regard to Section 13E of the Karnataka Town and Country Planning Act, 1961.
6. During the course of submissions, learned counsel have also brought to our notice that the interim order dated 25.01.2012, which has been clarified by the interim order dated 13.12.2012, has been operating till date and it is submitted that till the State Government notifies the proposed amendment to the Zoning Regulations, the said interim orders may be continued. Submission of learned counsel on either side is placed on record.
7. Learned counsel appearing for the petitioners states that there are other grievances with regard to the Master Plan 2015 such as with respect to Mutation Corridors and also learned counsel appearing in the other writ petitions state Date of Order 16-08-2017 W.P.No.26109/2017 & No.30545/2017 Mrs. Meher Cyrus Unvalla & Anr.Vs. The Medical Officer & others.
7/11that there are various other contentions which have been raised by the petitioners therein.
8. In the circumstances, we take the affidavit filed by the Commissioner, BDA on record. As stated in the affidavit, the BDA shall forward the amendment to the Zoning Regulations to the State Government for its approval. The State Government shall consider the same and notify the proposed amendment within a period of three months from the date BDA forwards the proposal to it. Till the proposed amendments are notified, the interim order dated 25.01.2012 as well as 13.12.2012 shall continue. BBMP shall also abide by the orders of this Court as well as the contents of its affidavit extracted supra. Having regard to the contents of the affidavit filed on behalf of the BBMP and pending notification of the amendment to the Zoning Regulations, the interim orders dated 25.01.2012 and 13.012.2012 are continued. All other contentions which are raised in these writ petitions on both sides are left open to be agitated in any other appropriate matter.
9. We have also noticed that several impleading applications i.e., I.A.Nos.II/2013, IV/2013, V/2013, X/2013 and XIII/2013 have been filed by private parties ventilating their Date of Order 16-08-2017 W.P.No.26109/2017 & No.30545/2017 Mrs. Meher Cyrus Unvalla & Anr.Vs. The Medical Officer & others.
8/11grievances with regard to the issues which have been raised in these writ petitions and particularly, with regard to the interim orders dated 25.01.2012 as well as 13.12.2012. We do not think that those applications which are in fact private interest litigations could be considered along with these public interest litigations. Therefore, we dispose of all the applications seeking impleadment by permitting the impleading applicants to file their separate and independent petitions to be considered by the Bench having roster.
10. With the aforesaid directions and observations, these writ petitions stand disposed.
11. In view of disposal of the writ petitions, all other pending interlocutory applications also stand disposed".
6. Having heard the learned counsels for the parties, this Court is of the opinion that while this petitions are premature before this Court, the petitioners are required to be relegated back to the concerned Authorities of BBMP to establish the factual foundation on the basis of which, such notice can be Date of Order 16-08-2017 W.P.No.26109/2017 & No.30545/2017 Mrs. Meher Cyrus Unvalla & Anr.Vs. The Medical Officer & others.
9/11validly assailed by the petitioners. Whether the road in question is of 40ft width or more, or whether as per the latest Zoning Regulations, such commercial activity can be allowed to the petitioners or not, is a mixed question of fact and law required to be decided by the concerned authorities in the first instance.
7. The learned counsel for the petitioners has also brought to the notice of the Court that similar matter has been disposed of by this Court in W.P.No.24504/2016 (Sri.Rajesh Kumar Ghorawath vs. The Commissioner, BBMP & Others) decided on 15.06.2016. The relevant paragraph-3 of the said judgment is quoted below for ready reference:-
"3. Having heard the learned counsel for the parties and upon perusal of the aforesaid Notification, this Court is satisfied that the present writ petition deserves to be disposed of by directing the concerned Authorities of the respondent-BBMP to decide the representation of the petitioner, after affording an opportunity of hearing to him and lead appropriate evidence, if Date of Order 16-08-2017 W.P.No.26109/2017 & No.30545/2017 Mrs. Meher Cyrus Unvalla & Anr.Vs. The Medical Officer & others.10/11
he wants to and then decide such representations in accordance with law as expeditiously as possible, preferably within a period of three months from today.
Writ petition is disposed of accordingly. No costs".
8. Having heard the learned counsels for the parties, this Court is satisfied that the present petitions also deserves to be disposed of in the same terms with the additional direction that till the Respondents-
Authority decides the representation of the petitioners by a speaking order in accordance with the relevant Rules and Regulations, they will not take coercive process for closing of the business activity at the site in question.
9. Therefore, the petitions are disposed of with a direction to the petitioners to approach the Respondent-
Medical Health Officer, Shivajinagar, Bangalore, in pursuance of the impugned Show Cause Notice dated 18.05.2017 and appear before the said Authority in the Date of Order 16-08-2017 W.P.No.26109/2017 & No.30545/2017 Mrs. Meher Cyrus Unvalla & Anr.Vs. The Medical Officer & others.
11/11first instance on 30.08.2017 at 11 a.m. and a period of four weeks is allowed to the said Respondent to pass appropriate speaking order after giving a reasonable opportunity of hearing to the petitionera. The Respondent-Authority of BBMP should refer to the concerned Rules and Regulations, facts and evidence led by the petitioners before the said Authority and then pass appropriate orders. For a period of six weeks from today, till the matter is decided by the Respondent-
Authority, no coercive action will be taken against the petitioners in this regard. It is made clear that no further extension of time would be granted to either of the parties to comply with the aforesaid directions issued by this Court. No costs.
Sd/-
JUDGE Srl.