IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.40663/2018 (LB-BMP) Between:
Smt. Chitrakala W/o. Shashindra, Aged about 48 years, Residing at No.451, 55th Cross, 3rd Block, Rajajinagar, Bengaluru – 560 010. ... Petitioner (By Sri. Sunil. S. Rao, Advocate for Sri. T. Seshagiri Rao, Advocate) And:
The Health Officer, B.B.M.P., Rajajinagar Division, Bengaluru – 560 010. ... Respondent (By Sri. Amith Deshpande, Advocate) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned final notice issued by the respondent in notice dated 30.08.2018 found at Annexure-A to the writ petition and etc.
This Writ Petition coming on for Orders, this day, the Court made the following:
ORDER The petitioner who is said to be the owner of the house property bearing No.229/B, 55th Cross, 3rd Block, Rajajinagar, Bengaluru – 560 010, has challenged the final notice at Annexure-A dated 30.08.2018, whereby the respondent after observing that commercial activity is being carried on, had called upon the petitioner to cease carrying on the commercial activity within a period of 7 days, failure to do so, necessary action could be taken under the provisions of the Karnataka Municipal Corporation Act, 1976.
2. The learned counsel for BBMP states that as per mahazar produced at page 7 of statement of objections, the premises has been sealed.
3. The petitioner states that the premises is not being used for commercial purpose and is let out for tenants who are carrying on data entry operations, data research in software and for financial consultancy and hence contends that the action of the BBMP is illegal.
4. The respondent-BBMP is to determine as to whether the activity being conducted in the premises belonging to the petitioner is permissible in terms of the notification dated 20.03.2015 vide No.UDD 105 MNJ 2008, Bangalore, dated 20.03.2015 which provides for permissible activities in different zones. This exercise has to be conducted by the respondent-BBMP as it involves determination of certain factual matters.
5. Taking note of the fact that the premises has also been sealed, it would be appropriate, taking into account the interest of the petitioner that the determination at the hands of the respondent-BBMP is to be concluded expeditiously within a period not later than five weeks from the date of receipt of certified copy of this order.
6. The respondent-BBMP is directed to determine as to whether the activity being conducted in the premises belonging to the petitioner by the tenants are permissible in terms of the notification dated 20.03.2015. The notice at Annexure-A is liable to be set aside as there is no determination as such which is to have preceded the exercise of power of sealing the premises. However, taking note of the fact that the premises has been sealed, the BBMP is directed to complete the determination as mentioned above and the petitioner is restrained from carrying on any activity till the determination is completed by the BBMP.
7. However, if the determination is not completed within a period as stipulated above, the petitioner is at liberty to re-enter the premises and carry on activity as was being conducted as on the date the mahazar was prepared, i.e., on 11.12.2018.
8. In the process of adjudication as regards permissibility of activity as provided above, the BBMP is at liberty to take note of the documents submitted by any person including the complainant, who may be aggrieved by the continuation of such activity by the petitioner and also take note of other documents which the authority may obtain in accordance with the procedure which may have a bearing on the matter. The said process of adjudication cannot be treated as an adversarial proceeding involving the right of audience as regards other persons including the complainant.
9. It is also made clear that the right of the respondent-BBMP to take note of the other proceedings initiated which may have a bearing on the matter is kept open. The BBMP is at liberty to initiate any action if other illegalities are committed by the petitioner, in accordance with the procedure prescribed under law.
10. Accordingly, the writ petition is disposed of subject to the above observations.
Sd/-
JUDGE SJK SSDYJ: W.P. No.40663/2018 19.02.2019 ORDER ON ‘BEING SPOKEN TO’ Matter has been moved praying that date be fixed for appearance of parties before the BBMP in order to avoid delay in service of notice.
The petitioner is directed to appear before the BBMP on 02.03.2019 at 11.00 a.m.
Accordingly, I.A.No.1/2019 is disposed of.
Sd/- JUDGE SJK