SRI B N MARIYAPPA vs. THE BBMP COMMISSIONER

THE COMMISSIONER BBMP, BENGALURU – 75.

THE ASST.EXECUTIVE ENGINEER N-9, EXECUTIVE AND SUB-DIVISION, SOLADEVANAHALLI, BENGALURU – 560 090.

MARIYAPPA S/O NANJAPPA, AGED ABOUT 69 YEARS, R/AT NO.691, 7TH CROSS, BAGALAGUNTE, NAGASANDRA, BENGALURU – 560 073. ... RESPONDENTS

THE BBMP COMMISSIONER 5TH FLOOR, LEGAL CELL N R SQUARE CORPORATION CIRCLE BENGALURU – 560 001.

MEDICAL OFFICER (HEALTH)

Writ petition No.41604/2019 is filed by the neighbour, who stays adjacent to the house of the fourth respondent, who

Heard Sri C. Mudduraj, learned counsel appearing for the petitioner, Sri S.N.Prashanth, learned counsel appearing for respondent Nos.1 to 3, Sri Akash V.T., learned counsel appearing for respondent No.4 in writ petition No.41604/2019 and Sri Girish Kumar R., learned counsel appearing for the petitioner, Smt. M.R.Sinchana, learned counsel appearing for the respondents in writ petition No.41604/2019 and perused the material on record.

The owner of the flour mill - fourth respondent had approached this Court in writ petition No.2935/2021, on a twofold challenge. One for disconnection of power to the flour

Pursuant to the order passed by this Court on 25.02.2021, the Health Officer of the BBMP issues a notice to the fourth respondent to appear before him in justification of the continuance of license. This becomes the subject matter of the companion writ petition No.13045/2021.

The ground on which the writ petition No.13045/2021, is preferred is that, the Health Officer has no jurisdiction to grant or cancel the license as it is the duty of the Commissioner under the Karnataka Municipal Corporation Act, 1976 (hereinafter referred to as ‘the Act’ for short). On such ground, the petitioner seeks interference at the hands of this Court. The Apex Court and this Court in several writ petitions have dealt with the rudimentary principle of ‘he who decides, must hear’.

The decision had to be taken by the Commissioner under the Act and now under the Bruhat Bengaluru Mahanagara Palike Act, 2020 (hereinafter referred to as ‘the BBMP Act’ for short), cancellation of license is the power vested with the Zonal Commissioner in terms of Chapter XXII, under Sections 307 and 308 of the BBMP Act.

The Health Officer nowhere figures in the scheme of the statute to even issue a notice to the petitioner informing such cancellation. The Health Officer issues a notice on the strength of the Office Order issued by the Commissioner in terms of Section 68 of the Act, which empowers the Commissioner to delegate certain ordinary powers. The very Office Order is considered and identical submission is negatived by this Court in writ petition No.14459/2019, disposed on 28.07.2021. The case therein was the powers of the Commissioner being performed by the Head of the Legal Cell. In the case at hand, the power of the Commissioner is sought to be performed by the Health Officer, on the strength of delegation in terms of Office

The submission of Smt. M.R.Sinchana, learned counsel appearing for the Bruhat Bengaluru Mahanagara Palike is that, since it is a notice, the same submission could be made before the Health Officer, is unacceptable. If the order is without jurisdiction, there can be no question of proceedings before the very authority which lacks jurisdiction. A notice without jurisdiction becomes a nullity in the eye of law as held by the Apex Court in the case of WHIRLPOOL CORPORATION Vs. REGISTRAR OF TRADE MARKS, MUMBAI & ORS.1, wherein it has held as follows:

Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is

That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the "Tribunal".

Learned counsel further submits that the petitioner in writ petition No.13045/2021, has knocked the doors of the civil Court (O.S.No.6618/2020), seeking an injunction against the BBMP and has also filed writ petition before this Court as well, exercising plural remedies. In response to this, learned counsel for the petitioner would submit that the matter pending before the civil Court would be withdrawn and his submission is placed on record.

For the aforesaid reasons, the following: ORDER i. Writ petition No.41604/2019 is disposed. ii. Writ petition No.13045/2021 is allowed. iii. The order dated 16.07.2021, impugned in writ petition No.13045/2021 stands quashed and the issue in writ petition No.13045/2021, is now relegated to the Zonal Commissioner under the BBMP Act, to issue notice to the petitioner and then pass appropriate orders in accordance with law. iv. The Zonal Commissioner of the BBMP shall issue notice to the petitioner, fixing the date of appearance and hearing the petitioner, within ten days from the date of receipt of a copy of this Order and the petitioner shall reply to the same, within the next ten days. v. The Zonal Commissioner shall comply with the aforesaid directions and pass appropriate orders, within six weeks thereafter.