Judgment:
ORDER
Chandrashekaraiah, J.
1. All these Petitioners arise out of an order passed by the Standing Committee of the Corporation of the City of Bangalore in the appeals filled under Section 444 of the Karnataka Municipal Corporations Act, 1976 (in short 'the Act') challenging the orders passed by the Assistant Executive Engineer-respondent No. 2, under Section 321 of the Act.
2. The Petitioners claim to be the tenants in respect of certain shop premises in Opera theater complex, Bangalore. The 2nd respondent passed a provisional order and also issued notice in the year 1990 under Section 321(1) and (2) of the Act, stating that the shop premises where the petitioners are carrying on the business are all unauthorised constructions as the said construction is without obtaining licence and getting the plan approved under the provisions of the Act. The said notices were challenged by the petitioners in WP.Nos. 31164-65/93 before this Court. During the pendency of the said petitions the Corporation issued notices again in the year 1994 under Section 321 of the Act. Thereafter the Corporation filed memo in the said Writ Petitions stating that the notices issued in the year 1990 are given up since fresh notices have been issued. This Court disposed of the said Writ Petitions, recording the statement made in the memo.
3. The notices issued in the year 1994 were challenged by the petitioners in WP.Nos. 15732 to 15734/95 and other connected petitions. The said Writ Petitions were disposed of by this Court by order dated 16.11.95 with liberty to the petitioners therein to file their objections to the proposed action and with a further direction to the Corporation to consider the said objection and to pass appropriate orders in accordance with law. Thereafter the petitioners have filed objections pursuant to the provisional order and the notices issued under Section 321(1) and (2) of the Act.
4. In other batch of W.Ps. 33488-494/93, the Corporation had filed a memo to the effect that the petitioners will be heard before passing final order under Section 321(3) of the Act. On the basis of the said memo this Court disposed of the said Writ Petitions with a direction to pass appropriate orders in accordance with law.
5. Respondent-2 after receiving the objections and after hearing the petitioners passed a final order under Section 321(3) of the Act. These orders were again challenged by the petitioners in W.P.Nos. 4734-4740/96 and other connected petitions before this Court. This Court by order dated 25.6.96 disposed of the said Writ Petitions on the ground that the petitioners have an alternative remedy of appeal under Section 444 of the Act and further this Court granted three weeks time to the petitioners to prefer appeals before the appropriate authority. In view of this order the petitioners have preferred appeals under Section 444 of the Act, before the Standing Committee, challenging the orders passed by respondent-2 under Section 321(3) of the Act.
6. The Appellate Authority dismissed the appeals confirming the orders of respondent-2. These orders are called in question by the petitioners in these Writ Petitions.
7. Sri B.V. Acharya, learned Senior counsel appearing for the petitioners contended that the 2nd respondent and the appellate Authority have not considered all the materials produced by the petitioners in their respective orders which are impugned in these Writ Petitions.
8. It is further contended that the impugned orders passed by respondent-2 are without authority of law, on the ground that the power conferred on the Commissioner under Section 321 of the Act is quasi judicial in nature and therefore, the said power cannot be delegated by the Commissioner to the Assistant Executive Engineer. Further, it is contended that the orders passed by the 2nd respondent and the Appellate Authority are vague and not speaking orders and therefore they are illegal and void.
9. Lastly, it is contended that the Commissioner or its delegate ought to have exercised power conferred under Section 321 of the Act, within a reasonable time and the said power having not been exercised within the reasonable time, the entire proceedings are vitiated.
10. In reply to the said submissions, Sri K.N. Puttegowda, appearing for the Corporation and Sri G.V. Shantharaj, learned counsel for the land owner submitted that the power conferred on the Commissioner under Section 321 of the Act can be delegated by the Commissioner to any of the officers subordinate to him by virtue of Section 66 of the Act and therefore the impugned orders passed by the 2nd respondent as a delegate of the Commissioner cannot be said to be an order without authority of law.
11. The learned Counsel for the contesting respondents further submitted that the petitioners having not produced any materials to show either before the 2nd respondent or before the appellate authority, that the constructions put up on the premises where the petitioners are carrying on the business are in accordance with law cannot complain that the impugned orders are vitiated either on the ground that no reasons are assigned or on the ground of violation of principles of natural justice. It is further submitted that the owner of the premises has himself admitted before the 2nd respondent that the said constructions are all unauthorised as there is no licence permitting such constructions and the said constructions are without obtaining the plan approved by the Corporation.
12. In order to consider the rival contentions of the patties, it is useful to refer to some of the provisions of the Act. Section 299 of the Act, reads thus:
'299. Application to construct or reconstruct building (1) if any person intends to construct or reconstruct a building, he shall send to the Commissioner an application. In writing for permission to execute the work together with a site plan of the land, ground plan, elevations and sections of the building, a specification of the work and such other documents as may be prescribed.'
Section 300 of the Act, reads thus:
'Prohibition against commencement of work without permission:-The construction or reconstruction of a building shall not begun unless and until the Commissioner has granted permission for the execution of the work.'
13. From a reading of the above sections, it is clear that any person who intends to construct shall make an application in writing for permission to execute the work. Section 300 of the Act, prohibits commencement of any work without the permission of the Commissioner. If any construction is made without obtaining the permission of the Commissioner, the said construction is an unauthorised construction. In the year 1990 the Corporation issued notices to the persons in possession of the premises under Section 321 (1) and (2) of the Act, calling upon them to remove the construction on the ground that the same is unauthorised. The landlord filed his reply to the said notices stating that the constructions where the petitioners are carrying on business are all unauthorised. The complaint of the petitioners is that the Corporation in connivance of the landlord initiated the proceedings under Section 321 of the Act.
14. In order to appreciate this contention, it is relevant to mention few facts. The petitioners though claim that they are the tenants under respondents-5 and 6 have not produced any material such as lease deeds or rent receipts to show that they are the tenants under respondents-5 and 6. Further, respondents-5 and 6 could not have leased the premises in question as the said premises were already leased in favour of one B.G. Kumaravelu.
15. Sri B.V. Acharya, learned senior counsel contended that under the lease deed, respondents-5 and 6 are allowed to effect improvements on the northern side of the theater premises by way of alteration or addition or erect new construction in accordance with the licence No.LPE E2 NE1969, dt. 29.3.1974 renewed on 30.5.75 for the benefit of the lessor and in the vacant land facing Brigade Road and Residency road and to let out such additional constructions to any person or persons whomsoever they desire. Sri G.V. Shantharaju learned counsel for the landlord has produced a plan approved pursuant to the aforesaid licence to show that the constructions proposed to be put up as per the abovesaid licence is in respect of other portion other than the northern portion or the vacant land facing the Brigade road and the Residency road. The petitioners have not produced any materials to show that the construction of shops where the petitioners are carrying on their business is pursuant to licence referred to above. In the absence of such material, the conclusion that may be drawn is that in respect of the shops facing Brigade road and Residency road there is no licence granted by the Corporation permitting the land owner to put up any constructions. Therefore the constructions where the petitioners are carrying on their petty business is not pursuant to the licence granted in the year 1974.
16. At the time of hearing I called upon the petitioners to produce any material to show that the said constructions are pursuant to any licence or an approved plan. But the petitioners have not produced any material even before this Court to show that the constructions are all authorised construction. The petitioners have also not produced any material either before the 2nd respondent or before the Standing Committee to show that the constructions are after obtaining licence from the Corporation. The Corporation has made available the records to the Court. In the records it is seen that in the order passed by the 2nd respondent it is stated that the petitioners themselves admitted that they have no licence or an approved plan issued by the Corporation for the purpose of putting up any construction. This order has not been produced by the petitioners in these petitions. The tenant who appears to have permitted the petitioners to carry on the business also has not produced any material before the authorities to show that the said constructions are all authorised constructions. In view of this, it cannot be said that the impugned order passed by respondent-2 is in violation of principles of natural justice, since the authority has afforded sufficient opportunity to produce any material to show whether the constructions are authorised under the Act. Even before this Court also, the petitioners have not produced any document to show that the said constructions are authorised.
17. Any construction to be made in the City of Bangalore is regulated under the provisions of the Act, and the Building Bye-laws. Bangalore City is considered as a Garden City. Any construction not in accordance with the provisions of the Act and Building Bye laws is liable to be removed under Section 321 of the Act, as it mars the beauty of Bangalore City. Therefore, I am of the considered view that these are not the cases where discretionary power conferred on this Court under Article 226 of the Constitution has to be exercised where the constructions are proved to be unauthorised, except in case of two Writ Petitions (Petitioners-5 and 7), which I will deal with later.
18. The learned Counsel for the petitioners submitted that the order passed by the 2nd respondent is without authority of law since according to him, the power conferred on the Commissioner under Section 321 of the Act is quasi judicial in nature and it cannot be delegated to any other authority. The Commissioner under the notification No. B12 (G) PR. 407/94-95 dt. 4.4.95 delegated his power conferred on him under Section 321 of the Act to the 2nd respondent under Section 66 of the Act. The said notification has not been challenged by the petitioners. Therefore, it is not open for the petitioners to contend that the impugned orders passed by 2nd respondent is without authority of law.
19. Even though the petitioners have not challenged the notification under which the power has been delegated to the 2nd respondent. I propose to consider whether the Commissioner can delegate his power conferred on him to any other Officer under Section 66 of the Act, as this point is being raised before this Court in many cases.
Section 66 of the Act reads thus:-
'Delegation of Commissioner's ordinary power - Subject to the rules made by the State Government.- the Commissioner may delegate to any officer of the Corporation subordinate to him, any of his ordinary powers, duties and functions including the powers specified in Schedule III.'
Section 67 of the Act, reads thus:-
'Delegation of Commissioner's extraordinary powers : The Commissioner may on his own responsibility and by order in writing authorise the health officer, the engineer, the revenue officer or any other officer who is the head of a department working under the Commissioner, or any person in temporary charge of the duties of any of the officers aforesaid to exercise the extraordinary powers conferred on him by Clause (b) of Sub-section (1) of Section 64.'
20. The reading of the above said sections, makes it clear that the Commissioner may delegate to any officer of the Corporation subordinate to him any of his ordinary powers, duties and functions. Under Section 67 of the Act, the Commissioner may by order authorise the Health Officer, the Engineer, the Revenue Officer, or any other Officer to exercise the extraordinary powers conferred on him by Clause (b) of Sub-section 1 of Section 64 of the Act. Section 64(1)(b) of the Act, refers to the emergency powers of the Commissioner, All the powers conferred on the Commissioner under the Act, are ordinary powers except the power referred to in Section 64(1)(b) of the Act.
21. The learned Counsel for the petitioners, contended that the power conferred on the Commissioner under Section 321 is quasi judicial in nature and such power cannot be delegated to any person under Section 66 of the Act, as it is not an ordinary power. In support of this contention he relied on the decision in the case of PEPSICO RESTAURANTS INTERNATIONAL (INDIA) PVT. LTD. v. CORPORATION OF THE CITY OF BANGALORE : ILR1996KAR1357 . The said decision deals with the revocation of licence on the ground of violation of any of the provisions of the PFA Act. The said decision in my opinion has no application to the facts of this case, since it does not deal with the power conferred on the Commissioner under Section 321 of the Act,
22. Section 321 of the Act, reads thus:
'321. Demolition or alteration of buildings or well work unlawfully commenced, carried on or completed -
(1) If the Commissioner is satisfied, -
(i) that the construction or reconstruction of any building or hut or well.-
a) has been commenced without obtaining his permission or where an appeal or reference has been made to the standing committee; or
b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based; or
c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye-laws; or
ii) that any alteration required by any notice issued under Section 308, have not been duly, made; or
iii) that any alteration of or addition to any building or hut or any other work made or done for any purpose into, or upon any building or hut, has been commenced or is being carried on or has been completed in breach of Section 320, he may make a provisional order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Commissioner, has been unlawfully executed, or make such alterations as may, in the opinion of the Commissioner, be necessary to bring the work into conformity with the Act, rules bye laws, directions or requisitions as aforesaid, or with the plans or particulars on which such permission or orders was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well or hut.
2) The Commissioner shall serve a copy of the provisional order made under Sub-section (1) on the owner or builder of the building or hut or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed.
3) If the owner or builder fails to show cause to the satisfaction of the Commissioner the Commissioner may confirm the order, with any modification he may think fit and such order shall then be binding on the owner.
4) If the construction or reconstruction of any building or hut is commenced contrary to the provisions of Section 300 or 314 and the Commissioner is of the opinion that immediate actionshould be taken, then, notwithstanding anything contained in this Act, a notice to be given under Sub-section (2) shall not be of less duration than twenty-four hours and shall be deemed to be duly served if it is affixed in some conspicuous part of the building or hut to which the notice relates and published by proclamation at or near such building or hut accompanied by beat of drum, and upon such affixation and publication, all persons concerned shall be 'deemed, to have been duly informed of the matters stated therein.'
23. Under Sub-section 1 of Section 321 of the Act, the Commissioner, if he is satisfied that any construction or reconstruction of any building is contrary to any of the provisions of the Act, may make a provisional order requiring the owner of the building to demolish the structure put up and also refrain him from proceeding with the said construction. Under Sub-section 2, the Commissioner, is required to serve a copy of the provisional order on the owner or the builder to show cause within a reasonable time. Under Sub-section 3, if the builder fails to show cause to the satisfaction of the Commissioner, the Commissioner may confirm the order with any modification as he deems fit. This power is nothing but one of the ordinary powers of the Commissioner as it is not one of the emergency powers provided under Section 64(1)(b) of the Act.
24. The power conferred on the Commissioner under Section 321 of the Act, assumed to be quasi judicial in nature, the question that arises for consideration is: whether that power can be delegated under Section 66 of the Act?
The Supreme Court in the case of HAZRAT SYED SHAH MASTARSHID All AL QUADARI v. COMMISSIONER OF WAKFS AND ORS. : [1961]3SCR759 has held as follows:
'Where powers and duties are interconnected and it is not possible to separate one from the other in such wise that powers may be delegated while duties are retained and vice versa, the delegation of powers takes with it the duties,'
25. The Supreme Court in the case of STATE OF BOMBAY v. SHIVBALAK GOURISHANKER DUBE AND ORS. : [1965]1SCR211 , while considering the delegation of power under Section 25 of the Bombay Tenancy and Agricultural Laws Act, has held as follows:
'Section 83 in terms authorises delegation by the State Government to any of its officers of the specified status and the delegation can be in respect of all or any of the powers conferred on the State Government by the provisions of the Act. Now, it seems to us that the authority to delegate all or any of the powers which is expressly conferred on the State Government by Section 83 would be rendered almost meaningless if the duty to hold an enquiry as a condition precedent for the exercise of the said authority cannot be delegated. In the context the power which can be delegated is inseparable from the enquiry which must precede the exercise of the power, and so, in order to make Section 83 effective it is necessary to hold that the delegation of the power authorised by the said section must necessarily involve the delegation of the discharge of obligations or functions which are necessary for the exercise of the said power.
If the view taken by the High Court is right it would mean that whereas the State Government can authorise any of the officers belonging to the specified class to exercise its powers under Section 65(1), it must hold the preliminary enquiry itself without delegating the authority to hold such an enquiry to any officer. It is hardly necessary to emphasise that this position is so plainly illogical that it would be unreasonable to recognise the validity of the authority to confer powers while insisting that the conditions precedent for the exercise of the powers are of such a separate and distinct character that in order to satisfy the said conditions, the required enquiry must be held not by any delegate of the State Government, but by the State Government itself. In coming to the conclusion that the duty, as distinct from the power, cannot be delegated, the High Court was apparently influenced by the fact that there would be no appeal against the enquiry and the conclusion reached at such an enquiry. We do not propose to express any opinion on this part of the reasoning adopted by the High Court; that will depend upon the construction of Section 86 of the Act. But whatever may be the position in respect of the competence of an appeal, we are satisfied that on a fair and reasonable construction of Section 83 it must be held to authorise the delegation not only of the powers mentioned by it, but also of duties of functions which are incidental to the exercise of the powers and are integrally connected with them. (emphasis supplied)
In this connection, we may usefully refer to the decision of the Privy Council in Edward Liso Mungoni v. Attorney General of Northern Rhodesia. In that case, in dealing with a similar question under Regulation 16(1) of the Emergency Powers Regulations, 1956, of Northern Rhodesia, made by the Acting Governor of Northern Rhodesia under his statutory powers, the Privy Council has held that the power and the duty under Regulation 16(1) were so interwoven that it was not possible to split the one from the other so as to put the duty on one person and the power in another; the regulation contained not so much a duty, but rather a power coupled with a duty, and he who exercised the power had to carry out the duty. In the result, the Privy Council took the view that in delegating his functions under Regulation 16(1) the Governor could delegate both the power and the duty together to one and the same person/he could not delegate the power to another and keep the duty to himself. It is not difficult to realise what anomalous consequences would follow if it is held that the power can be delegated, but not the duty to hold the incidental enquiry which alone can lead to the exercise of the power. In substance, the view taken by the High Court would make the authority to delegate the power wholly meaningless. In fairness, we ought to add that Mr. Pathak who appeared for the respondents did not seek to support this part of the High Court's decision.'
26. The power conferred on the Commissioner under Section 321 of the Act; is not only the power to initiate proceedings if he is satisfied that the construction is contrary to the Act and the Rules and also imposes a duty on him to pass an order after holding an enquiry, if he is not satisfied on the cause shown by the person to whom the notice has been issued under Section 321(1) of the Act. If that is so in view of the decisions referred to above, the power coupled with the duties conferred on the Commissioner may be delegated by virtue of Section. 66 of the Act.
27. The Supreme Court in the case of PRADHYUT KUMAR BOSE v. THE HON'BLE C.J. OF CALCUTTA AIR 1950 SC 285 has held that no judicial Tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication.
28. As stated earlier, the power conferred on the Commissioner under Section 321 of the Act, is one of the ordinary powers coupled with the duties. All the powers which are conferred on the Commissioner except the extraordinary powers and that of the functions and duties of the Commissioner may be delegated under Section 66 of the Act. As there is an express provision under the Act, enabling the Commissioner to delegate his powers to his subordinate officers, the order passed by the 2nd respondent by virtue of delegation of powers cannot be said to be without any authority of law.
29. This Court in W.P. Nos. 4560/93 and connected matters, decided on 30.1.1997 has held as follows:
'The expression 'including the powers specified in Schedule III' are added by 1994 amendment. Even in the absence of those expressions, Section 66 of the Act, provides for delegation of the ordinary powers of the Commissioner, to any of the officers of Corporation. Section 64(1)(b) of the Act, deals with the extraordinary powers of the Commissioner and they do not include the powers of the Commissioner specified in Schedule-III. Section 67 of the Act deals with the delegation of the extraordinary powers of the Commissioner. With or without amendment, the Commissioner had the authority of law to delegate his powers, duties and functions to any officer of the Corporation subordinate to him. If the Commissioner could delegate his powers specified in Schedule-III, by virtue of the amendment, he could as well delegate the same powers even under the unamended provision as the said provision includes all his. ordinary powers, duties and functions. These powers includes the powers specified in Schedule-III.'
The abovesaid view supports the view that I have taken as stated above. In view of the reasons stated above, I find no substance in any of the contentions that the power of the Commissioner under Section 321 of the Act cannot be delegated to any of his subordinate officers.
30. The learned Counsel for the petitioners contended that the authorities ought to have exercised the power within the reasonable time, otherwise the proceedings are vitiated, from the facts, it is seen that the Corporation has issues the notices under Section 321 of the Act, in the year 1990, immediately after they came to know that the said constructions are unauthorised. These notices were withdrawn and fresh notices have been issued in the year 1994 which are subject matter of these petitions. Therefore, it cannot be said that the authorities have not exercised their power within a reasonable time. Hence, I am of the view that the power exercised by the Corporation cannot be said to be exercised beyond reasonable time.
31. The case of petitioners 5 and 7 namely M. Anwar Pasha and Mansoor Pasha respectively stand on a different footing. Admittedly, the premises where these petitioners are carrying on business are part of the old Opera theater which has been in existence for the last many years. In the notices issued to these petitioners, what has been stated is that the construction is unauthorised. It is not possible to hold that the premises, as they are the part of the old Opera theater, cannot be said to be a new construction without a licence and approved plan. Therefore, the notices issued to these petitioners are vague and do not disclose proper reasons for issuing the notices under Section 321 of the Act. The learned Counsel for the Corporation submitted that these two petitioners have unauthorisedly altered the premises where they are carrying on business without obtaining the permission of the Commissioner. The said fact is not forthcoming in the notices issued to them. Therefore, the petitioners in these two petitions are entitled to succeed as there is no proper application of mind by the authorities in issuing the notices to them.
32. For the reasons stated above, W.P.No.s 8385. 8386: 8387: 8388: 8390: 8392: 8393: 8494: 8395: 8396 and 8397 of 1997 are dismissed. Since the petitioners in these petitions are carrying on business in the petition shops for the last many years, it is just and necessary to grant some time to shift their business by finding alternative premises. Therefore, the Corporation is directed not to give effect to he impugned orders in respect of these petitioners for a period of three months from today.
33. Writ Petitions insofar as they relate to petitioners-8 and 7 (M. Answar Pasha and Mansoor Pasha) are allowed:However, liberty is reserved to the authorities to initiate fresh proceedings in the event if they are satisfied that the rennovation, alteration or repairs if any made by petitioners-5 and 7 is contrary to the Act and the Rules.