IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE S SUNIL DUTT YADAV WRIT PETITION NOS.5597/2019 & 11735/2019 (LB BMP) BETWEEN 1. MRS. DANIELLE FERNANDES, W/O AJAY FERNANDES, AGED ABOUT 36 YEARS, RESIDING AT NO.003, SARMA GARDENS, NO.1, COOKSON ROAD, RICHARD TOWN, BANGALORE-560005.
2. ANDRE ALLAN D’SOUZA, S/O ALLAN D’SOUZA AGED ABOUT 33 YEARS, R/AT NO.C-203, ADMIRALTY SQUARE, 6TH MAIN, 13TH CROSS, HAL 2ND STAGE, BANGALORE-560008. ... PETITIONERS (BY SRI CYRIL PRASAD PAIS, ADV. OF CYRIL PRASAD PAIS & ASSOCIATES.) AND 1. BRUHATH BENGALURU MAHANAGARA PALIKE, N R SQUARE, BANGALORE-560002, REP. BY ITS COMMISSIONER.
2. HEALTH OFFICER, BRUHATH BENGALURU MAHANAGARA PALIKE, SHANTHINAGAR RANGE, ASHOK NAGAR, AUSTIN TOWN, BANGALORE-560025. ... RESPONDENTS (BY SMT. M.C.NAGASHREE, ADV.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTICE DATED 5/11/2018, ISSUED BY R-2, WHICH IS AT ANNEXURE-A ETC.
THESE WRIT PETITIONS COMING ON FOR ‘ORDERS’, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners being aggrieved by the notice dated 5.11.2018 whereby a notice has come to be issued to one of the tenants of the petitioners to close down their commercial establishments and failing to do so, action will be initiated under the provisions of Karnataka Municipalities Act, 1976 to close down the establishment.
2. The said notice at Annexure-A further stipulates that commercial activity in residential zone and also conducting the commercial activity in parking area, basement and mezzanine floor contrary to sanction plan is illegal. It is further observed that the activities are in violation of the Zoning regulations and also contrary to the revised Master Plan-2015 and the directions passed in WP No.3676/08 by this Court.
3. The petitioners contend that the property has been let out to different tenants and the tenant of the ground floor is running a tailoring enterprise while the tenant on the first floor is relating to an office which is involved in booking of guest rooms in Hotels, Villas, etc.. It is further stated that, the second floor of the building is let out to a Company wherein back-end operations and supporting activities to the main business is being conducted. Petitioners further state that they have been paying tax to respondent-BBMP authority at the commercial rate. The electricity bills are also being paid at the commercial tariff. It is contended that action is now sought to be initiated by respondent-authority without following proper procedure and though the communication is addressed as a notice, it amounts to a final order and hence, have assailed the said notice.
4. It is to be noticed that the question of permissibility of the activities of the tenants being one which entails factual adjudication and there is no categorical finding as to the nature of commercial activity and its permissibility in the notice at Annexure- A, it would be appropriate to direct respondent-BBMP to hear the petitioners and record a finding as to the permissibility or otherwise of the activities of the tenants of the petitioners. While considering the nature of activity of the tenants of the petitioners, the respondent-BBMP is to record a finding after hearing the petitioners as regards the nature of activity and its permissibility keeping in mind the directions of Division Bench of this Court dated 19.2.2019 passed in W.P.No.3676/08, the Zoning Regulations, the Revised Master Plan-2015 and also notification No.UDD 105 MNJ 2008, Bengaluru dated 20.3.2015 and such other Circulars as may have has a bearing with respect to permissibility of such activity of the tenants. Such consideration to be completed within a period not later than six weeks from the date of receipt of a copy of this order.
Accordingly and subject to the above observation, the petitions are disposed of.
Notice at Annexure-A, it is clarified, is to be treated as notice and not an executable order.
Sd/- JUDGE Sk/-
CT-HR