IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION NO.45948/2018 (LB-BMP) C/W WRIT PETITION NO.44298/2018 IN WP NO.45948/2018 BETWEEN:
M/S ANNAPOORNA RICE TRADERS NO.732, 10TH MAIN (NEAR SHREE CAUVERY SCHOOL) INDIRANAGAR 2ND STAGE BENGALURU-560 038 REPRESENTED BY ITS PROPRIETOR SRI.REVANNA.
... PETITIONER (BY SRI. R ABDUL REYAZ KHAN, ADV.) AND 1. STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT AUTHORITY VIKAS SOUDHA, BANGALORE-01 REPRESENTED BY ITS PRINCIPAL SECRETARY.
2. THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE N.R.SQUARE, BANGALORE-560 002.
3. THE JOINT COMMISSIONER (EAST) BBMP, MAYO HALL M.G.ROAD, BANGALORE-02.
4. THE HEALTH OFFICER BBMP, C.V.RAMAN NAGAR ZONE HALASURU, BANGALORE-560038.
... RESPONDENTS (BY SRI. ANANDISHWARA, HCGP. FOR R1, SRI. K.N.PUTTEGOWDA, ADV. FOR R2 TO R4.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER OR DIRECTIONS QUASHING THE IMPUGNED ORDER NO. JOINT COMMISSIONER [EAST] PR/3186/2018-19 DATED 28/09/2018 PASSED BY THE RESPONDENT NO.3 VIDE ANNEXURE-C.
IN WP NO.44298/2018 BETWEEN:
SHALOON HARI & BEAUTY SPA NO.732, 10TH MAIN (NEAR SHREE CAUVERY SCHOOL) INDIRANAGAR 2ND STAGE BENGALURU-560 038.
REPRESENTED BY ITS PROPRIETOR SMT. MARIA THERESA.
... PETITIONER (BY SRI. S.M.IRBAZ, ADV.) AND 1. STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT AUTHORITY VIKAS SOUDHA, BANGALORE-01 REPRESENTED BY ITS PRINCIPAL SECRETARY.
2. THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE N.R.SQUARE, BANGALORE-560 002.
3. THE JOINT COMMISSIONER (EAST) BBMP, MAYO HALL M.G.ROAD, BANGALORE-02.
4. THE HEALTH OFFICER BBMP, C.V.RAMAN NAGAR ZONE HALASURU, BANGALORE-560038.
... RESPONDENTS (BY SRI. ANANDISHWARA, HCGP. FOR R1, SRI.B.V.MURULIDHAR, ADV. FOR R2 TO R4.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 28.07.2019 PASSED BY THE RESPONDENT-3 VIDE ANNEXURE-C.
*** THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioners are challenging the order dated 28.9.2018 vide Annexure-C passed in W.P.No.45948/2018 and order dated 28.7.2018 vide Annexure-C passed in W.P.No.44298/2018 by the respondent No.3.
2. The case of the petitioners is that respondent No.4 has issued a show-cause notice dated 26.5.2017 to show cause as to why the business run by the petitioners cannot be stopped. Pursuant to the notice, the petitioner in W.P.No.45948/2018 has submitted the written objections and produced all relevant documents. In W.P.No.44298/2018, the petitioner has appeared before the respondent No.3 and made oral submission in respect of his case. The specific contention of the petitioner is that the shop run by the petitioner is under permissible limit as the width of the road in front of the shop is more than 40 feet and the built up area of the shop is less than 20% of the total built up of whole building. Inspite of petitioners producing relevant records, the respondent No.3 has passed the closure order on 28.9.2018 in W.P.No.45948/2018 and closure order on 28.7.2018 in W.P.No.44298/2018. Being aggrieved by the same, the petitioner is before this Court.
3. The learned counsel appearing for the petitioner submits that pursuant to the show-cause notice issued by respondent No.4, the petitioner in W.P.No.45948/2018 has submitted the written objections and produced all relevant documents and the petitioner in W.P.No.44298/2018 has appeared before the respondent No.3 and made oral submission in respect of his case. He further contended that the activity carried out by the petitioners is under permissible limit as per the regulations framed under Revised Master Plan vide Annexure-D that the ancillary usage shall be permitted in residential zone and residential mixed zone in Ring 1 and Ring 2 upto 20% of the built up area or 50 sqmts., whichever is lower provided the width of the road is above 40 ft. The petitioners have produced relevant records to show that he has building area lesser than 20% and road width is more than 40 feet width. In support of his case, he has relied upon the report submitted by the AEE vide Annexure-E dated 4.10.2018 showing that the road width is more than 40 feet. Without considering this aspect of the matter and without application of mind, the impugned orders have been passed. Hence, he sought for allowing the writ petitions.
4. The learned counsel appearing for the Corporation submitted that the properties in both the cases is situated in Ward No.80, 10th Main Road, 9th Cross, 2nd Stage, Indiranagar. In the impugned orders passed in both the cases, the Officer has referred that the road width as 12.19 mtrs and 11.90 mtrs. But in the report submitted by the AEE vide Annexure-E, the road width is more than 40 mtrs. There is discrepancy in the impugned order and the report submitted by the AEE. On the basis of the report submitted by the authorities, the impugned orders have been passed. Hence, he sought for dismissal of the writ petitions.
5. Heard the learned counsel appearing for the parties.
6. It is not in dispute that the respondent No.4 has issued show-cause notice on 26.5.2017 to the petitioners to show-cause as to why the business of the petitioners cannot be stopped. Subsequently, the petitioners have appeared before respondent No.3. The petitioner in W.P.No.45948/2018 has filed written objections and the petitioner in W.P.No.44298/2018 has appeared before the respondent No.3 and submitted his oral submission.
7. As per the Regulations framed in the Revised Master Plan vide Annexure-D, the ancillary usage shall be permitted in residential zone and residential mixed zone in Ring No.1 and Ring No.2 upto 20% of the built up area or 50 sqmts., whichever is lower provided the width of the road is above 40 ft. As per the report submitted by the AEE, the road width has been mentioned as 41 feet. In the impugned orders passed by the respondent No.3, it is shown as 12.19 mtrs in W.P.No.45948/2018 and 11.90 mtrs in W.P.No.44298/2018. There is discrepancy in the report submitted by the different officers.
8. Under the circumstances, the matter requires reconsideration. Therefore, the impugned order dated 28.9.2018 vide Annexure-C passed in W.P.No.45948/2018 and order dated 28.7.2018 vide Annexure-C passed in W.P.No.44298/2018 by the respondent No.3 are quashed. The matters are remitted back to the respondent No.3. The respondent No.3 to reconsider the same after giving opportunity to the petitioners and after conducting the inspection and after considering all relevant materials produced by the parties, shall pass orders in accordance with law within two months from the date of receipt of copy of this order.
9. This Court while issuing notice has granted the interim order. Hence, the same shall continue till the disposal of the petitions pending before the respondent No.3.
With the above observations, the writ petitions are disposed of.
Sd/- JUDGE DM