ORDER
The Court
1. In all these writ petitions, the facts and the grounds urged and the respondents are common. Therefore, this Court is passing this common order.
2. In all these petitions, petitioners are all the owners of their respective properties and have constructed both residential and non-residential buildings within the limits of Corporation of Bangalore City. It is alleged by the Commissioner of the Corporation of the City of Bangalore that the petitioners have violated the provisions of the Karnataka Municipal Corporations Act, 1976 (in short, 'the KMC Act'), building bye-laws particularly Clauses 5.1 and 6.1 in constructing their respective buildings in contravention of the sanctioned plan, deviated from the same and constructed the buildings beyond the limits of regularisation of the unauthorised portions of the buildings in law. Therefore, it is stated that proceedings were initiated against each one of the petitioners by the delegated authorities under Section 321(1) of the Act and passed the provisional orders specifying the portions of the deviations made by each one of the petitioners in their respective buildings. The said orders by the Corporation have been duly served upon the petitioners by issuing notices under Section 321(2) of the Act after considering the objection statement of the petitioners, the different competent delegated authorities of the Commissioner have passed confirmation orders in exercise of their power under the provisions of Section 321(3) of the Act specifically mentioning the percentage of deviations of the constructions of the buildings by them, which is in contravention of the provisions of the Act, building bye-laws, sanctioned plan and the law laid down by the Apex Court and this Court.
3. The petitioners have been called upon by the competent delegated authorities of the Corporation to remove the respective portions of the unauthorised construction of the buildings within the specified time mentioned in the confirmation orders served upon them, otherwise, the Corporation would take necessary steps for removing the unauthorised construction made by the petitioners in their respective buildings as mentioned in the confirmation orders served upon them.
4. Aggrieved of the orders passed under Section 321(3) by the different delegated authorities under the provisions of the Act, petitioners filed appeals before the Standing Committee Appeals, under the provisions of Section 444 of the KMC Act. The Standing Committee Appeals in all these matters after hearing the petitioners recorded its findings in unequivocal terms stating that there is deviation of the sanctioned plans in the construction of the buildings made by them as they have contravened the Building Bye-laws. However the Appellate Authority has given a direction to the Corporation to regularise the unauthorised construction of the buildings on humanitarian grounds by imposing appropriate penalty on them and issue modified sanctioned plans under the provisions of the Act and building bye-laws in favour of the petitioners in conformity with the deviations made by each one of them in respect of their buildings in question.
5. The Commissioner of the Bangalore City Corporation in discharge of his statutory duty having found that the orders passed by the Standing Committee Appeals are in contravention of the provisions of the Act and bye-laws and the law laid down in this regard by this Court hasrecorded a finding based on the undisputed facts stating that there is deviation of the sanctioned plans and unauthorised construction of the buildings which have been put up by each one of the petitioners. Therefore, the Commissioner has referred all the orders passed by the Standing Committee Appeals, on the appeals filed by the petitioners to the Council in exercise of his power under sub-section (2) of Section 444 of the Act for taking necessary action in the cases. The Council was required to take a decision in the matter, keeping in view the provisions of the Act, the building bye-laws and the law laid down by this Court regarding unauthorised construction of the buildings with reference to the findings recorded by the delegated authority and the Standing Committee Appeals, but, it has deferred to take a decision on the orders of the Appellate Authority on the ground that the Government is likely to amend the building bye-laws and further directed the Commissioner to place the orders of the Standing Committee Appeals before it, after amendment to the bye-laws are made by the State Government. The said resolution was forwarded to the State Government as required under Section 98(2) of the KMC Act. The State Government represented by its Principal Secretary in exercise of its power under Section 98(3) of the Act after taking into consideration the various relevant factors such as extent of deviations made by each one of the petitioners with reference to the sanctioned plan in respect of their buildings and feasibility of regularisation of the building by imposing penalty and the unreported decision of this Court rendered in the case of Anand Mohan, Smt. Govindan v Corporation of the City of Bangalore, has passed orders dated 10-8-1999 and in pursuant to this order DIG of BMTF has passed an order dated 24/25-9-1999 for demolition of the unauthorised portions of the buildings of the petitioners.
6. Thereafter, the Corporation has issued notices to these petitioners in pursuant to the Government Order and the order of DIG of BMTF which are impugned in these writ petitions calling upon them to remove the unauthorised portion of the construction in their respective buildings except the building covered in W.P. No. 40314 of 1999. All the petitioners have not challenged the Government Order passed in exercise of its power under Section 98 of the Act and the order of DIG (BMTF). But, they have sought for issuance of a writ of certiorari to quash the composite Government Order in respect of two petitions and an appropriate direction is sought for by the petitioners to the Corporation not to demolish the unauthorised portions of their buildings as pointed out by the Corporation in the provisional orders and in the confirmation orders passed under the provisions of Section 321(1) and 321(3) of the Act by the competent delegated authorities which have been served upon the petitioners, and in pursuant to the composite order passed by the Government in exercise of its power under Section 98(3) of the Act, the notices issued to them calling upon them to remove unauthorised portions of their respective buildings are also challenged in some of the petitions urging various grounds.
7. The learned Counsel appearing on behalf of the petitioners have contended that, the Government has no power to set aside the order of the Standing Committee Appeals as the order passed by the Appellate Authority is final under the provisions of Section 444(3) of the Act and therefore the State Government has no jurisdiction and authority for judicial review of the orders passed by the Appellate Authority. The order passed by the Standing Committee Appeals in exercise of its quasi-judicial powers conferred upon it under the provisions of the Act shall not be interfered with by the State Government under the guise of power conferred upon it under Section 98 of the Act, as the orders of the Standing Committee Appeals have become final in view of the fact that the reference made by the Commissioner in respect of the orders passed by the Standing Committee Appeals to the Council has been referred back to the Commissioner and no decision has been taken by the Council in these cases. Therefore, the orders of the Standing Committee Appeals have become final. Hence, the State Government has no jurisdiction, power or authority to set aside the orders of the Standing Committee Appeals and consequently the issuance of the impugned notices to the petitioners in pursuant to the Government Order referred to supra, calling upon the petitioners to remove the unauthorised portions of their building in question which have been constructed by them.
8. The learned Counsel for the petitioners have further urged that even assuming for the sake of argument that the State Government has got power under the provisions of the Act under Section 98 of the Act to examine the correctness of the orders passed by the Standing Committee Appeals on the appeals filed by the petitioners, challenging the confirmation order passed by the different delegated authorities against the petitioners, the State Government has heard only the Corporation in view of the specific provision provided under sub-section (3) of Section 98 of the Act and after considering the reply submitted by the Corporation and after conducting an enquiry it has passed the composite order which are referred to supra without hearing the petitioners, which action of the State Government is in violation of the principles of natural justice and law declared by the Apex Court. Therefore, they have contended stating that the impugned orders are void ab initio in law for the reason that the order passed by the Government in exercise of its power under Section 98(3) of the Act, entails serious civil consequences upon the rights of the petitioners, which order is passed without giving hearing to the petitioners as required under the provisions of the Act and the law laid down by the Apex Court in the case of Smt. Maneka Gandhi v Union of India and Another, which principle of law has been reiterated by another judgment of the Apex Court in Geetha v Union of India , therefore the learned Counsel for the petitioners have urged that the State Government should have heard these petitioners before passing the order. This mandatory legal requirement has not been complied with by the State Government, therefore, the impugned order passed by theState Government consequent upon which the action intended to be taken by the Corporation to execute the orders passed under Section 321(3) by issuing notices to some of the petitioners are illegal and unlawful, therefore, the learned Counsel appearing on behalf of petitioners submitted that in pursuant to the impugned order the action of the Corporation is required to be interfered with by this Court in exercise of its discretionary and supervisory jurisdiction of this Court.
9. The learned Counsel appearing on behalf of the petitioners have further contended that on the basis of orders passed by the Standing Committee Appeals, on the appeals filed by them they have acquired rights, as the Appellate Authority has given direction to the Corporation to regularise the unauthorised portions of the constructions of their respective buildings made by them and therefore they are not executable orders under the provisions of the Act, hence, the orders which are passed by the Standing Committee Appeals will not come within the purview of exercise of power by the Government under Section 98(3) of the Act. For this reason also the learned Counsel for the petitioners have contended that the impugned order passed by the Government is bad in law. It is also further contended by the learned Counsel that the judgments of Supreme Court and this Court particularly in M/s. Rajatha Enterprises v S.K. Sharma is applicable to the facts of the case even if there are deviations of the sanctioned plans in construction of the buildings the Corporation shall not initiate proceedings against them much less proceedings under Section 321 of the Act against the petitioners.
10. Further, it has been contended by the learned Counsel on behalf of the petitioners on various aspects namely the orders passed by the Standing Committee Appeals have become final under sub-section (3) of Section 444. Those orders do not fall within the purview of Section 98 of the Act. Therefore, the exercise of power by the State Government and passing the order referred to supra and consequent upon it the action initiated by the Corporation by issuing the impugned notices are without authority of law, inoperative, inchoate and in executable in law. Hence, the same are liable to be quashed. In support of this contention much reliance is placed by them upon the authorities in the case of Puttahonnamma v Gangadhara Murthy and ILR 1997 SC 3245 (sic). It is also further contended by them that the scheme of the Act under Section 102 of the Act provides for suo motu revisional power to the Government and it can call for records of any proceedings of the Corporation, the Standing Committee Appeals, the Commissioner or any other officer subordinate to the Commissioner of the Corporation can examine and consider the correctness, legality or propriety of any order or proceedings after giving reasonable opportunity to the parties after hearing them and pass such orders under the provisions of the Act. In the instant case, the State Government has not exercised its revisional power but the power is exercised under Section 98(3) of the Act on a reference of the orders of the Standing Committee Appeals on reference by theCommissioner as the said orders are not executable orders under the provisions of the Act. Therefore, it is urged that the impugned order passed by the Government is liable to be quashed.
11. The learned Counsel appearing on behalf of the Corporation on the basis of common counter filed in Writ Petition No. 40314 of 1999 sought to justify the impugned order passed by the State Government in exercise of its power under Section 98(3) of the Act consequent upon the order passed by it the action was sought to be taken against the petitioners by the Corporation on the basis of orders passed under Section 321(3) of the Act, they have placed reliance upon various provisions of the Act namely Sections 6, 11, 98 and 444. It is stated that, Corporation is a statutory Corporation established under the provisions of the Act which is a local self-Government covering the Bangalore Metropolitan City area notified in the Karnataka Gazette in exercise of its power under the provisions of the Act and it has been discharging its statutory duties which have been specifically enumerated under the provisions of the Act and the Rules and Bye-laws framed under the provisions of the Act. The State Government under the provisions of the Act is entrusted with the statutory duty of regulation of construction of the buildings in conformity with building bye-laws framed by the Government in exercise of its power under the provisions of the Act, with a view to see that the buildings either residential or commercial be constructed within the Metropolitan Area of the City of Bangalore strictly in conformity with the provisions of the Act, Bye-laws and Zonal Regulations, with a view to see that the City is developed in a planned manner in the larger interest of the public leaving set-back area on the basis of floor area ratio, and on the basis of the various facts as mentioned in the Bye-laws and Zonal Regulations the construction of either residential or commercial building should be constructed strictly in conformity with the prescribed height of the buildings which are enumerated strictly in the Zonal Regulations and in the Tables provided to the building bye-laws. .The Bye-laws and Zonal Regulations are framed with a laudable object of getting good air and light to the neighbouring residents of the locality for their healthy and peaceful living without affecting their statutory and fundamental rights. The regulation of construction of building activity by the residents and the non-residents of the city are governed by the provisions of the building bye-laws, Zonal Regulations. Therefore, the persons who intend to construct the buildings within the city Metropolitan Area should obtain the sanctioned plan and the licence under the provisions of the Act, Building Bye-laws and the Zonal Regulations. If the licensing authorities of the Corporation, contrary to the building bye-laws, sanction the plan and issue licences in favour of persons, the same are not legal and valid, and the same can be challenged by the aggrieved persons and this Court can quash the same. The power is conferred upon the Commissioner or his delegated authority under Section 321 of the Act to take action against such persons who deviate from the sanctioned plans and put up unauthorised constructions or construction of the buildings without obtaining sanctioned plan and licences, after giving opportunity to the persons who have violated the law.Against such order, a statutory right of appeal is provided to them under Section 444 of the Act to the Standing Committee Appeals, constituted under the provisions of Section 11 of the Act. The learned Counsel for the Corporation has drawn my attention to the relevant provisions of Sections. 6, 11, 98, 299, 321, 444 and etc., of the Act in support of his case on behalf of the Corporation.
12. Against the order that will be passed either by the Commissioner or the delegated authority under provisions of Section 321 are subject to challenge of such order by invoking the statutory right of appeal by filing an appeal under Section 444 of the Act. The conferment of such power upon the Standing Committee Appeal, constituted under Section 11 of the Act is in the nature of quasi-judicial exercise of power having regard to the nature of power and duty cast upon it. Further, the learned Counsel for the Corporation has vehemently submitted that, every resolution, order or action of the Corporation or any other authority or officer subordinate thereto to the Government doing of any act or it is about to be done or as having been done or on behalf of the Corporation is in contravention in exercise of powers conferred by the Act or of any law for the time being in force is prejudicial to the interest of the Corporation or cause injury or annoyance to the public at large. The State Government has retained the power either to refuse or to modify the resolution, order or any action that is taken by the Corporation, its officers, authority or subordinate officers. The conferment of such power upon the Government under Section 98 is supervisory in nature with a view to see that the Corporation being a local self-Government should function itself, its officers or authority should function in exercise of their power strictly in conformity with the provisions of the Act, while exercising power conferred upon it and its officers under the provisions of the Act. By careful reading of Section 98 of the Act it confers supervisory power to have the overall control by the State Government so that it can interfere with such resolution, orders or action that would be passed and taken by them, if the same are opposed to law, this power is retained by the State Government, under the provisions of the Act in the interest of public residents. Therefore, it is contended that, having regard to the provisions of sub-section (3) of Section 98 of the Act, Government can a null, set aside the resolution, order or action either passed by the Council, Authority or by its officers after hearing the Corporation as provided under the provisions of the Act as the Corporation has got statutory obligation to justify its resolution, order or action passed or taken by its Authority or subordinate officers, after such enquiry the State Government can pass appropriate orders.
13. Having regard to the nature of power conferred under Section 98(3) upon the State Government coupled with discharge of its statutory duty as provided under sub-section (3) of Section 98 of the Act, it is contended by the Government Advocate and Counsel for the Corporation that the power of the State Government is supervisory in nature, while examining the resolution, order or action of the Corporation and its officers. It has the power to review the resolutions and the decisions that are taken by the Standing Committees Appeals as it is an authority ofthe Corporation under the provisions of the Act in view of definition of Section 11 of the Act. Therefore, it is submitted by the learned Government Advocate and Counsel on behalf of the respondents that the Government has got every power to review the decisions of the authority including the Standing Committee for Appeals in exercise of its quasi-judicial power under sub-section (2) of Section 444 of the Act when the decision or order of the Appellate Authority is forwarded to the State Government for its consideration and it can judicially review the order or resolution of the corporation under Section 98(3) and (4) of the Act.
14. The justification of orders passed under Section 321(1) and (3) of the Act need not be referred to in this judgment by this Court for the reason that the petitioners have to succeed on a short ground with regard to the impugned order, notices and their action of demolition of unauthorised construction of the buildings of the petitioners. Though majority of petitioners have not challenged the order of the Government and not urged the grounds which ought to have been urged in assailing the impugned order in the interest of justice, after perusal of the Government Order, I am satisfied that, the same was required to be passed by it in exercise of its supervisory power under Section 98(3) after following the procedure as laid down in this regard. Therefore, I do not propose to consider the various contentions urged with regard to justification of orders passed under Section 321(1) and (3) of the Act and the impugned orders passed by the Standing Committee Appeals though elaborately it has been pointed out with reference to each one of the cases in the affidavit and the Annexure to it giving the details of percentage of deviation in respect of each one of the buildings of the petitioners wherein the delegated authorities have specifically recorded a finding after conducting spot inspection and consideration of relevant facts which have been dealt with by the Standing Committee Appeals in its orders in the Appeals filed by the petitioners, however it has directed the Corporation to regularise the buildings on humanitarian grounds the unauthorised construction irrespective of the nature and percentage of unauthorised construction of the buildings in question, the direction and the orders of the Standing Committee of Appeals, the State Government has seriously viewed in exercise of its supervisory power under Section 98(2) and (3) of the Act while examining and considering the orders of the Standing Committee Appeals. This Court, with reference to rival contentions urged by the learned Counsel on behalf of the parties has examined and considered whether the petitioners are entitled for relief of quashing the Government Order particularly that State Government has no power or control over the decisions rendered by the Standing Committee Appeals in exercise of its quasi judicial power under Section 98(2) and (3) of the Act, this Court has considered this legal question in these writ petitions and answered the same, as this Court has to lay down the law regarding the power of the State Government under Section 98(2) and (3) of the Act.
15. To answer the rival contentions urged by the petitioners and the respondents with regard to the nature of power conferred upon the State Government as provided under the provisions of Section 98(2) and (3) ofthe Act the following point is framed and answer the same on the basis of the various provisions of the Act, scheme, object and intentment of the Act.
16. Whether the State Government, has got the power under Section 98(2), (3) and (4) of the Act to interfere with the orders passed by the Standing Committee Appeals in exercise of its power under the provisions of Section 444 when the orders passed under Section 321(3) are challenged and upon the resolution passed by the Corporation Council or any action taken by the authority or the action of subordinate officers to the Corporation and whether the same are subject to judicial review of the State Government as contemplated under Section 98(2), (3) and (4) of the Act? To answer this question, the following provisions of the Act are necessary to be extracted for appreciation and consideration of the rival contentions, which provisions are extracted as hereunder:
'6. Municipal Authorities.--The following shall be the municipal authorities of the Corporation charged with carrying out the provisions of this Act, namely.-
(a) the Corporation;
(b) the Standing Committee; and
[1 (c) the Commissioner'.
'11. Standing Committees.--There shall be four Standing Committees of the Corporation, namely.-
(a) the Standing Committee for taxation, finance and appeals;
(b) the standing Committee for public health, education and social justice;
(c) the Standing Committee for town planning improvement; and
(d) the Standing Committee for accounts).......'.
'98. Submission of copies of resolution to Government and Government's power to cancel resolution and orders.-
(1) The Commissioner shall submit to the Government copies of all resolutions of the Corporation.
(2) If the Government is of opinion that the execution of any resolution or order of the Corporation or of any other authority or officer subordinate thereto or the doing of any act which is about to be done or is being done by or on behalf of the Corporation is in contravention of or in excess of the powers conferred by this Act or of any other law for the time being in force or is likely to lead to a breach of the peace or to cause injury or annoyance to the public or to any class or body of persons or is prejudicial to the interest of the Corporation it may by order in writing, suspend the execution of such resolution or order, or prohibit the doing of any such act after issuing a notice to the Corporation to show cause within a date to be specified which shall not be less than fifteen days why.-
(a) the resolution or order may not be cancelled in whole or in part, or
(b) any bye-law or regulation concerned may not be repealed in whole or in part.
(3) Upon consideration of the reply, if any received from the Corporation and after such enquiry as it thinks fit, Government may pass orders cancelling the resolution or order or repealing the bye-law or regulation and communicate the same to the Corporation.
(4) Government may at any time, on further representation by the Corporation or otherwise, revise, modify or revoke an order passed under sub-section (3)'.
17. As I have already referred to the facts of the case and the contentions of the learned Counsel for the parties, therefore it is not necessary for me to repeat the provisions of the Act which are extracted in the earlier paragraph of this judgment. From the scheme, object, purpose and intentment of the Act, the exercise of powers by the Commissioner and his delegated authorities particularly with regard to the unauthorised construction of the buildings made by the petitioners by deviating from the sanctioned plans or without obtaining sanctioned plans as required in law. The regulation of construction of the buildings within the Corporation limits is a statutory function of the Corporation, as it is a local-self Government with a view to see that the policy of the State Government has been explicitly incorporated in the provisions of the Act and bye-laws framed by the State Government. In exercise of its Legislative power under the Constitution of India in the larger interest of the public at large is required to be kept in mind by this Court to answer the question formulated by this Court while examining the nature and extent of power conferred upon the State Government under Section 98(2)(3) and (4) of the Act.
18. Having regard to the nature of powers conferred upon the Standing Committee Appeals constituted under Section 11 of the Act, the exercise of power by it is a quasi-judicial power as it will determine the rights of the parties after hearing the parties. Therefore the decision of the Standing Committee Appeals under sub-section (2) of Section 444 is final having regard to the nature and extent of power of superintendence of the State Government retained under the provisions of Section 98 of the Act with a view to control upon the function of the Corporation regarding passing of its resolutions, order or action of the Corporation or of any other authority or officers subordinate thereto and the reasons on which such resolutions or orders or action of the officers subordinate thereto to be interfered with by the State Government after giving opportunity to the Corporation to state its case after conducting such enquiry and pass appropriate orders after examining either the resolution, orders or action of the Corporation or its Authority as referred above, if it affects the public residents at large. By careful reading of the above said provisions of the Act it would clearly indicate that the power conferred upon the Government is also quasi-judicial in nature but, it is notan administrative power as contended by the learned Counsel for the petitioners. Having regard to the scheme, intentment, object and purpose of the Act in conferring and retaining such power with the State Government, as the regulation of construction of buildings either residential or commercial by the owners/promoters/occupiers of the property after obtaining necessary licence as required under Sections 299, 300, 301 and 302 of the Act read with Building Bye-laws framed by the State Government in exercise of its powers under the provisions of the Act. The power under Sections 299, 300, 301 and 302 read with the building bye-laws is entrusted to the Commissioner and Standing Committee Appeals to regulate the construction of the buildings in the city to see that the buildings shall be constructed strictly in conformity with the provisions of the Act, building bye-laws and the Zonal Regulations. That power is entrusted with the Commissioner and also upon his delegated authorities under the provisions of the Act. The duty is also cast upon the Commissioner or his delegated authority and its officers to supervise the construction of the buildings by the holders of licences to see that they construct the buildings strictly in conformity with the sanctioned plans and the licences. If there is any deviation in the construction of the buildings by the persons then proceedings have to be initiated against such persons under Section 321 of the Act after giving opportunity to the parties and pass an order for removal of unauthorised construction. An order under Section 321(3) can be passed either by the Commissioner or his delegated authority under the provisions of the Act. Such orders are subject to the appeals as provided under Section 444 of the Act.
19. It is an undisputed fact that, in all these petitions, the petitioners have constructed the residential and non-residential buildings upon their respective properties after obtaining sanctioned plan and the licence from the competent licensing authority of the Corporation. It is also an undisputed fact that delegated authority in all these cases passed provisional orders in exercise of their powers under Section 321(1) of the Act specifically pointing out the deviations of the construction of buildings by each one of the petitioners and they have been given opportunity to state their case by issuing notices under Section 321(2) of the Act and on serving provisional orders upon them. All the petitioners have submitted their objection statement and the same have been considered by the delegated authorities of the Commissioner when they have passed order under Section 321(3) of the Act. Further, they were not satisfied with the objection statements filed by them, therefore the provisional orders passed by them have been confirmed under Section 321(3) of the Act. Aggrieved of the said orders passed by the delegated authority under Section 321(3) of the Act, the appeals are filed by the petitioners before the Standing Committee, Appeals under Section 444 of the Act. The right of appeal is a substantive statutory right upon the aggrieved parties having regard to the nature of orders passed by the delegated authority in exercise of their power under Section 321(3) of the Act which entails civil consequences upon the petitioners as the delegated authorities have directed them to demolish the unauthorised constructions of the buildings in their orders as the same are in contra-vention of the provisions of the Act. Building Bye-laws and the sanctioned plans. The entrustment of power under Section 444 of the Act upon the Standing Committee Appeals, is a quasi-judicial exercise of power for the reason that it has to pass orders after hearing the parties and it will determine the rights of the parties.
20. By reading the provision under Section 444(2) of the Act, it clearly indicates that power is conferred upon the Commissioner if Standing Committee Appeals reverses or substantially modify the orders passed, action taken or proposed to be taken by the Commissioner or his delegated authority, he shall within sixty days from such date refer the matter to the Corporation for its examination to find out whether the orders passed by the Appellate Authority are in conformity with law as it would defeat the policy of the Government and affect the public residents of the Corporation area and on pending decision of the Corporation on such reference, the Commissioner of the Corporation shall not be bound to give effect to the decision of the Standing Committee Appeals. This provision is incorporated under Section 444 to see that the power entrusted with the Standing Committee Appeals shall be exercised carefully by it keeping in view the provisions of the Act and the building bye-laws. If reference is not made with regard to the order passed by the Standing Committee Appeal, the larger power is conferred under Section 94(4) upon the State Government as ultimately the State Government is answerable and accountable for the good governance of the people of the State including the City Corporation. The incorporation of City Corporations under the provisions of the KMC Act is the devolution of power by the State Government and conferment of such power upon local self-Government to achieve the object enumerated under the preamble of the Constitution to achieve the welfare State as enumerated under the preamble of the Constitution of India, which is the basic feature of the Constitution. Therefore, the State Government has retained its supervisory power and control upon the Corporation under Section 98(2), (3) and (4) of the Act, regarding its functioning, within the City Corporation limits passing of resolution, order or the orders or taking any action either by it or any other authority as defined under Section 6 of the Act or action taken by the officers subordinate there to. The object and intentment of retaining the power under sub-sections (2), (3) and (4) of Section 98 with the State Government regarding functioning of the Corporation is to ensure that the policies of the State Government are executed and implemented in the interest of the residents of the Corporation limits. The policy of the Government in enacting the KMC Act, 1976 and providing the provisions of Sections 299, 300, 301 and 302 of the Act and framing the Building Bye-laws is to see that City Corporation Area is developed in a planned manner. If that object is defeated either by the Corporation or by its authority including the Standing Committee Appeals or its officers who are subordinate thereto, the State Government shall interfere with the same and see that the local self-Government the City Corporation herein should function in conformity with the provisions of the Act and building bye-laws in thelarger interest of public of the residents of the Corporation Area to achieve the object, purpose and intentment of the Act.
21. For the reasons stated supra and having regard to the nature of power conferred upon the Government under Section 98 of the Act whether the enquiry is required to be conducted under sub-section (3) of Section 98 before reversing or modifying the order, the Standing Committee Appeal which is the authority of the Corporation in terms of Section 6 of the KMC Act, as per sub-section (3) of Section 6 of the KMC Act,, as per sub-section (3) of Section 98 of the Act, the Corporation shall be heard in the matter. Therefore, in my considered view, the submission made on behalf of State and respondent Corporation that power under Section 98 retained by the Government is supervisory in nature but it is not administrative in character as contended by the learned Counsel for the petitioners is tenable in law and the same has to be accepted. Therefore, the State Government has got every power to see that the order of the Standing Committee Appeals are examined and judicially reviewed. Therefore, the State Government was perfectly justified in exercising its power under Section 98(3) of the Act, with regard to the orders passed by the Standing Committee Appeals, having regard to the findings recorded by it stating there are deviations of the construction of the buildings by the petitioners beyond permissible limits under the provisions of the Act and building bye-laws of Bangalore City Corporation. Therefore, the point formulated by this Court is answered in favour of respondents holding that the State Government has got power to examine the orders passed by the Standing Committee Appeals in exercise of its appellate power, which is quasi-judicial in nature and these orders are final, which are subject to the supervisory jurisdiction and control of the State Government under Section 98 of the Act in the larger interest of public/residents.
22. Having answered the point formulated by this Court whether the Government has got power in exercise of its power under Section 98 of the Act to examine the orders passed by the Standing Committee Appeals in favour of the respondents, now this Court has to examine whether the order passed under Section 98(3) of the Act in conformity with the provisions of Section 98(3) read with the law laid down by the Apex Court in Smt. Maneka Gandhi's case, supra. It is necessary to examine whether the order that was passed under Section 98(3) will have serious civil consequences upon the rights of the owners who have constructed the buildings and who had filed appeals which came to be allowed by the Appellate Authority by setting aside the orders passed by delegated authorities of the Corporation under sub-section (3) of Section 321. Those orders can be judicially reviewed by the State Government either at the instance of the Commissioner as he has forwarded those orders on the ground that there are deviations of the sanctioned plans, Building Bye-laws by the petitioners beyond compoundable limits or in its motion. Therefore, the rights accrued in favour of the petitioners in pursuant to the orders passed in their appeals by the Standing Committee Appeal are deprived by the first respondent as the same is passed by it without hearing them. Though sub-section (3) of Section 98 does notcontemplate that the right of hearing to be given to the interested persons, namely the petitioners, in view of the law laid down by the Apex Court reported in Smt. Maneka Gandhi's case, supra, wherein the Supreme Court has interpreted Articles 19 and 21 of the Constitution and further with regard to the provisions of Passports Act, 1967, at paragraph 57 it has been held as hereunder:
'57. The question immediately arises: does the procedure prescribed by the Passports Act, 1967 for impounding a passport meet the test of this requirement? Is 'right or fair or just'? The argument of the petitioner was that it is not, because it provides for impounding of a passport without affording reasonable opportunity to the holder of the passport to be heard in defence. To impound the passport of a person, said the petitioner, is a serious matter, since it prevents him from exercising his constitutional right to go abroad and such a drastic consequence cannot in fairness be visited without observing the principle of audi alteram partem. Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21, now, it is true that there is no express provision in the Passports Act, 1967 which requires that the audi alteram partem rule should be followed before impounding a passport, but that is not conclusive of the question, if the statute makes itself clear on this point, then no more question arises. But even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Byles. J., in Cooper v Wandsworth Board of Works. 'A long course of decisions, beginning with King v Chancellor, University of Cambridge (Dr. Bentley's case) , and ending with some very recent cases, establish that although there are no positive words in the statute requiring that the party shall be beard, yet the justice of the common law will supply the commission of the legislature'. The principle of audi alteram partem which mandates that no one shall be condemned unheard, is part of the rules of natural justice. In fact, there are two main principles in which the rules of natural justice are manifested, namely, nemo debet esse judex in propria causa and audi alteram partem. We are not concerned here with the former since there is no case of bias urged here. The question is only in regard to the right of hearing which involves the audi alteram partem rule. Can it be imported in the procedure for impounding a passport'.
23. The aforesaid principle laid clown by the Apex Court has been further reiterated by the Supreme Court in the subsequent judgment in the case reported in C.B. Gautam v Union of India. In view of law laid down by the Constitution Bench Judgment of the Supreme Court referred to in Maneka Gandhi's case, supra, light of hearing is conferred upon the petitioners in compliance with the principles of natural justice is mandatory by the State, as this principle of law should be read into sub-section (3) of Section 98 of the Act. This legal requirement has not been complied with by the State Government, therefore, on this ground alone, the impugned order passed by the Government is liable to be quaabed and consequent order, action passed and taken by the BMTF and the Corporation are also liable to be quashed.
24. I have perused the impugned order. It is a common order passed by the State Government. In the order, the various relevant aspects pertaining to each one of the case of the petitioners has not been dealt with by the State Government. Further, I have examined the records of the State Government the order is passed on the basis of opinion rendered by the legal department which is not an independent decision of the Government. Therefore, for this reason also, the impugned orders in these petitions are bad in law, and the same are liable to be quashed.
25. Having recorded the finding that the impugned orders and the notices issued by the Corporation are bad in law, same are liable to be quashed. It is also necessary for this Court to make certain observations in this judgment in the larger interest of public residents and further to direct the Commissioner of the Bangalore City Corporation to take disciplinary action against concerned officers who have not been discharging their duties in supervising the construction of buildings within the limits of the City Corporation, and he can continue to do so where either the deviations of the sanctioned plans and buildings will be constructed or unauthorised construction of the buildings are made without obtaining the licence and sanctioned plan. Before this Court number of cases pertaining to unauthorised construction are filed, the proceedings are initiated in exercise of power under Section 321 of the KMC Act by the Delegated Authorities of the Corporation by filing writ petitions, either challenging the orders under Section 321 or the orders passed in the appeals which are filed by aggrieved persons before the Standing Committee Appeals, questioning the legality and validity of the orders passed under Section 321. Therefore, it is necessary for this Court to direct the Commissioner and the Delegated Authorities, licensing authorities who have sanctioned the plans and issued licences as required in law, to supervise the construction of the buildings along with the staff of Engineering Department here afterwards and monitor the construction of buildings with a view to see that they should construct the buildings strictly in accordance with the sanctioned plan. It is noticed by this Court, such unauthorised constructions are coming up within the limits of Corporation area, this is due to not discharging the duties by the jurisdictional and concerned Engineers though it is their statutory duty not to allow the owners of the buildings to construct the buildings by deviating sanctioned plans and licences. Therefore, it isnecessary for this Court to make observation, wherever such deviations and where proper action has not been taken by the Engineering Department with regard to the unauthorised construction of the buildings at relevant point of time, the Commissioner shall take necessary action and make necessary entries in the service record of the concerned officers of the corporation who are not diligent in discharging their statutory duties.
26. This Court has compelled to make the aforesaid observations for the reason that no action has been taken by the-Commissioner of Corporation against the concerned Engineers, who were required to supervise the constructions of the buildings in question if they are in service, wherever deviations are made by the parties contrary to the sanctioned plans.
27. As could be seen from the orders passed by the Standing Committee Appeals in these cases and in number of cases particularly with regard to deviations of the sanctioned plans, constructions of the buildings have been made by the owners. The Standing Committee Appeals has recorded a finding in these cases and other cases wherein it has been stated that the orders passed under Section 321 of the Act by the delegated authorities are legal and valid as the persons have constructed the buildings deviating the sanctioned plans, however it has directed the Corporation to regularise the unauthorised constructions and grant modified plans in their favour though regularisation of unauthorised construction of buildings beyond permissible limits. Therefore, it is necessary for the Government to amend the provisions of the Act suitably regarding the constitution of Standing Committee Appeal to hear and decide the appeals as provided under Section 444 of the Act, as the nature of power conferred upon it is quasi-judicial in nature as it will determine the valuable rights of the parties. Therefore, they are required to exercise their power strictly in conformity with the provisions of the Act, keeping in view the object, purpose and intentment of the Act. It would be proper for the State Government to entrust this power to the persons who will have judicial background. This Court suggests to confer the appeal power upon the Karnataka Appellate Tribunal where both judicial and non-judicial Administrative service members will be presiding the bench constituted for hearing such appeals as they exercise their power judiciously having regard to the scheme of the Act and duties conferred upon the Statutory Corporation in regulating the construction of buildings in the larger interest of public/residents for their peaceful living in the area by allowing the residents/non-residents to construct the buildings in a planned manner.
28. The above observations are made by this Court having regard to the fact that number of such cases of unauthorised construction of buildings have been coming up in the Corporation limits of Bangalore City in deviating the sanctioned plans and Building Bye-laws, the writ petitions are filed before this Court and the cases are remitted back for non-consideration of the cases of the parties and the orders of the Standing Committee Appeals, are not in conformity with the provisions of the Act. Therefore, it is hoped and trusted that the State Government will consider these observations seriously and make suitable amendments to the provisions of the Act regarding entrustment of the appeal powers upon the persons who will have judicial background and judicious mind, so that the appeals that would be filed before such authority will be disposed in accordance with law, keeping in mind the scheme, object, purpose and internment of the KMC Act and Building Bye-laws. Building Bye-laws strictly in the larger interest of the public/residents. For the reasons stated supra, the petitioners must succeed. Hence, I pass the following order:
Except W.P. No. 6588 of 1999 all the writ petitions are allowed. Rule made absolute. Impugned orders are hereby quashed and the consequent action upon such orders taken against the petitioners is also hereby quashed. Matters are remitted back to the Government with a direction to hear the petitioners and consider their cases keeping in view the provisions of the Act, Building Bye-laws, sanctioned plan and the confirmation orders passed by the delegated authority in these cases after hearing the petitioners and pass appropriate orders in these cases. This entire process must be completed within two months from the date of receipt of this order.
So far as W.P. No. 6588 of 1999 is concerned, the prayers sought for in this petition cannot be granted, as the respondent owner's petition is allowed for the reasons stated supra. However, liberty is given to the petitioner to appear before the State Government to state his case regarding the unauthorised construction of the building of the respondent owner to take proper and just decision by the State Government in the matter. Hence, W.P. No. 6588 of 1999 is dismissed.
Further, consequent upon the orders of the Standing Committee Appeals, if the petitioners/parties have filed application for modification of their respective building plans, the same shall be deferred by the Corporation till appropriate orders are passed by the State Government in respect of the cases as observed in this judgment.
The Government shall hear the petitioners and interested persons who are parties in these petitions.
Further it is also made very clear that, wherever, the appeals filed by the petitioners/owners before the Standing Committee Appeals are dismissed by the Appellate Authority, it is open for the Corporation and its delegated authorities to take suitable and necessary action in accordance with the orders passed under Section 321(3) of the Act by the delegated authority and also under the provisions of the Act as expeditiously as possible.
29. The Registry shall send a copy of this order to the Chief Secretary to Government of Karnataka and the Commissioner. Bangalore Mahanagara Palike to consider the observations made during the course of this order and to take necessary steps in that regard.