Karnataka High Court
Dr.N. Gnanamurthy vs The Commissioner on 4 December, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 26789 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 26789 OF 2023 (LB-BMP)
BETWEEN:
1. DR.N. GNANAMURTHY,
AGED ABOUT 62 YEARS,
S/O LATE U. NARASIMHA SETTY,
RESIDING AT NO.43, 1ST FLOOR,
1ST 'A' MAIN ROAD, 7TH BLOCK,
KORAMANGALA, BENGALURU - 560095.
2. DR. B. M. MAMATHA,
AGED ABOUT 55 YEARS,
W/O. DR. N. GNANAMURTHY,
RESIDING AT NO.43, 1ST FLOOR,
1ST 'A' MAIN ROAD, 7TH BLOCK,
KORAMANGALA, BENGALURU - 560 095.
...PETITIONERS
(BY SRI V. B. SHIVA KUMAR, ADVOCATE)
Digitally signed
by AND:
NARAYANAPPA
LAKSHMAMMA 1. THE COMMISSIONER,
Location: HIGH BRUHAT BENGALURU MAHANAGARA PALIKE,
COURT OF
KARNATAKA CORPORATION OFFICES, N. R. SQUARE,
J. C. ROAD, BENGALURU - 560 002.
2. THE ASSISTANT EXECUTIVE ENGINEER,
BRUHAT BENGALURU MAHANAGARA PALIKE,
KORAMANGALA, SUB-DIVISION,
PALIKE BUILDING, 2ND CROSS ROAD,
5TH BLOCK, KORAMANGALA,
BENGALURU - 560 078.
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WP No. 26789 of 2023
3. M V SRIDHAR CHAKRAVARTHI,
S/O M VEDANTACHAR,
AGED ABOUT 42 YEARS,
ADVOCATE,
R/AT N 44, 1ST A MAIN ROAD,
7TH BLOCK, KORAMANGALA,
BENGALURU - 560 095.
...RESPONDENTS
(BY SRI RAJESHWARA P N, ADVOCATE FOR R3,
SRI PAWAN KUMAR, ADVOCATE FOR R1 AND R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DTD.21.11.2023 PASSED BY THE HON'BLE KARNATAKA
APPELLATE TRIBUNAL IN REVENUE APPEAL NO.241/2021 CH
NO.2 IS AT ANNEXURE-A, AND APPLICATION FILED UNDER
ORDER VI RULE 17 OF THE CODE OF CIVIL PROCEDURE READ
WITH REGULATION 13 OF THE KARNATAKA APPELLATE
TRIBUNAL REGULATION IS AT ANNEXURE-B
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY THE COURT MADE THE FOLLOWING:
ORDER
1. Sri.Pawan Kumar, accepts notice for respondent Nos.1 and 2. Sri.P.N.Rajeshwara, who has filed caveat for respondent No.3 accepts notice for respondent No.3.
2. The petitioners are aggrieved by the order dated 21.11.2023 passed by the Karnataka Appellate Tribunal, in Revenue Appeal No.241/2021 dismissing the -3- NC: 2023:KHC:43621 WP No. 26789 of 2023 application filed by the petitioners under Order VI Rule 17 of the Code of Civil Procedure.
3. The respondent-Corporation had issued provisional order under Sub-Section(1) of Section 321 of Karnataka Municipal Corporation Act, 1976 (for short hereinafter referred to as 'Act of 1976') on 05.03.2021, which was followed by a confirmatory order under Sub-Section (3) Section 321 on 15.03.2021. The same having been challenged by the petitioners in the aforesaid appeal, the petitioners wanted to seek for amendment of the appeal memo to place on record a legal/factual argument that the provisional order has been issued on 05.03.2021 and confirmatory order on 15.03.2021, the same could not have been done under the Act of 1976, but ought to be done under The Bruhat Bengaluru Mahanagara Palike Act, 2020 (for short hereinafter referred to as 'BBMP Act, 2020') which came into force on 11.01.2021.
4. The said application came to be rejected by the Appellate Tribunal on the ground that the proceedings having been initiated by issuance of notice under Sub-Section(1) of -4- NC: 2023:KHC:43621 WP No. 26789 of 2023 Section 308 of the Act of 1976 on 26.05.2020. As such the proceedings under Section 321 being continuation of the same are saved by the repeal and saving provision and as such fresh notice under Section 248 was not required.
5. Sri.V.B.Shivakumar, learned counsel for the petitioners, would submit that the provisional order under Sub-Section(1) of Section 321 having been issued 05.03.2021 after the BBMP Act, 2020 came into force on 11.01.2021 is non est inasmuch as there is no power vested with the officers of BBMP to invoke provision of the Act of 1976 as on that date and as such he submits that this aspect ought to have been looked into by the Appellate Tribunal. Be that as it may, he submits that at the time of deciding the application for amendment under Order VI Rule 17, it was not required for the Appellate Tribunal to go into the merits of the matter and as long as the other requirements are met, the said application ought to have been allowed.
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6. Sri.P.N.Rajeshwara, learned counsel for respondent No.3 would submit that the action initiated against the petitioners is in pursuance of the Writ Petition filed by respondent No.3 bringing to the notice of this Court that the petitioners were carrying out illegal and unauthorised construction as regards which the Corporation had not taken action by issuing necessary notices and orders. The default of the Corporation is now coming in the way of respondent No.3 in enjoying the fruits of the order passed by this Court and if the proceedings before the Karnataka Appellate Tribunal are allowed on account of this fact then respondent No.3 will continue to suffer, since no action could be taken against the petitioners.
7. Sri.Pawan Kumar, learned counsel appearing for the respondent - Corporation, submits that the notices under Sub-Section(1) of Section 308 having been issued, the further proceedings under Section 321 being a continuation of the said notice are saved and as such the Corporation would support the case of respondent No.3 and submit that the application has rightly been rejected by the Appellate Tribunal.
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8. Heard Sri.V.B.Shivakumar, learned counsel appearing for the petitioners, Sri.Pawan Kumar, learned counsel appearing for respondent Nos.1 and 2 and Sri. P.N.Rajeshwara, learned counsel appearing for respondent No.3. Perused the records.
9. Having heard the learned counsel for the parties, the points that would arise for determination are:
i. Whether the officers of the Corporation can invoke provisions of Section 321 of the Act of 1976, after the BBMP Act, 2020 has come into force? ii. Whether in this case, since notice under Sub-
Section (1) of Section 308 has been issued would the further proceedings under Sub-Section(1) of Section 321 be saved?
iii. What order?
10. ANSWER TO POINT NOs.(i) & (ii): Whether the officers of the Corporation can invoke provisions of Section 321 of the Act of 1976, after the BBMP Act, 2020 has come into force?
AND Whether in this case, since notice under Sub- Section (1) of Section 308 has been issued would the further proceedings under Sub-Section(1) of Section 321 be saved?
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NC: 2023:KHC:43621 WP No. 26789 of 2023 10.1. This aspect has already been dealt with by this Court in the case of B.Radha Krishna Shenoy vs. The Commissioner Mangalore City Corporation1 wherein this Court categorically has come to the conclusion that a notice under Sub-Section (1) of Section 308 is not a substitute to a provisional order under Sub-Section (1) of Section 321. Inasmuch as when a notice under Sub-Section (1) of Section 308 is issued by the Commissioner, the same would have to detail out the allegation against the addressee/noticee as to in what manner, plans or specifications have been violated are in contravention of the rules/by-laws and a direction be issued by the Commissioner directing the addressee/ noticee to carry out such alteration as are required to bring it into conformity to the said plans specifications and provisions. 10.2. It is in the event of the said alternations not having been made then the order under Sub-Section(3) of Section 308 could be passed by the Commissioner 1 W.P.No.3878/2018:NC:2023 KHC 33168 -8- NC: 2023:KHC:43621 WP No. 26789 of 2023 confirming the directions issued for modifications/alterations.
10.3. It is only in the event of such an order under Sub-
Section (3) of Section 308 having been passed and not complied with by the addressee/noticee that by exercising powers under Clause(ii) of Sub- Section(1) of Section 321, a provisional order could be passed that the alteration required by a noticee under Section 308 has not been complied with. 10.4. In the present case only a notice under Sub-
Section(1) of Section 308 has been issued prior to the BBMP Act, 2020 having come into force, which came into force on 11.01.2021 and the proceeding under Section 308 not having attained finality by an order under Sub-Section(3) of Section 308, the invocation of Sub-Section(1) of Section 321 could not be made post the BBMP Act, 2020 coming into force.
10.5. Admittedly, the provisional order under Sub-Section (1) of Section 321 has been passed on 05.03.2021 and the confirmatory order has been passed on -9- NC: 2023:KHC:43621 WP No. 26789 of 2023 15.03.2021 which is post the BBMP Act, 2020 having coming into force, which could not have been so done. The matter would have been different if a final order under Sub-Section (3) of Section 308 had been passed and in pursuance thereof, the powers under Clause (ii) of Sub- Section (1) of Section 321 were exercised then it could be said that the said proceedings are continuing ones which are saved by the Repeal and Saving Clause.
10.6. No order Sub-Section (3) of Section 308 having been passed there is no pending proceeding requiring exercise of powers under Section 321 moreso when notice under Section 321 does not make it as a basis for the violation of an order under Sub-Section (3) of Section 308. 10.7. In that view of the matter I answer point Nos.(i) and (ii) holding that proceeding under Section 321 could not have been initiated post to BBMP Act, 2020 having come into force.
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11. ANSWER TO POINT NO.(iii) : What order?:
11.1. In the above circumstances, I am of the considered opinion that the impugned order passed by the Appellate Tribunal not only on the question of law as regards the interplay between Section 308 and Section 321, but also on account of the judicial authority or quasi-judicial authority in requiring to go into the merits of the amendment at the stage of considering the application, the impugned order would be required to be quashed.
11.2. Ex-facie case even it being clear that the proceedings against the petitioners having initiated under the Act of 1976 after the BBMP Act, 2020 came into force, the said proceedings before the Appellate Tribunal would have to be allowed. In that view of the matter, liberty is reserved to the Corporation to make the said submission before the Appellate Tribunal and take up fresh proceedings under Section 248 of BBMP Act, 2020.
12. In that view of the matter, I pass the following:
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NC: 2023:KHC:43621 WP No. 26789 of 2023 ORDER i. Writ Petition is allowed, a certiorari is issued.
Order dated 21.11.2023 passed by the Karnataka Appellate Tribunal in Revenue Appeal No.241/2021 at Annexure-A is hereby quashed.
ii. The Application filed by the petitioners under Order VI Rule 17 in I.A.No.1 stands allowed. iii. Liberty is however, reserved to the Corporation as mentioned above.
Sd/-
JUDGE GVP List No.: 1 Sl No.: 57