JUDGMENT
S.R. Nayak, J.
1. All these writ appeals are directed against the Order of the learned Single Judge dated 13th October,2000 passed in Writ Petition Nos. 38414-15 of 1999 and the batch.
2. Writ Appeal Nos. 593-601 of 2001, 674 of 2001, 888 of 2001, 4312 of 2001, and 688 of 2001 are filed by the owners of the properties in question, whereas the remaining writ appeals are filed by the Bangalore Mahanagara Palike (for short, the Corporation). The owners of the properties would contend that the action taken by the Government of Karnataka in the purported exercise of power under Section 98 of the Karnataka Municipal Corporations Act, 1976 (for short, the Act) is one without authority of law and therefore, the order of the learned Single Judge cannot be sustained. In the Writ Appeals preferred by the Corporation, the limited attack is that the learned Single Judge erred in law in granting personal hearing to the owners of the properties in question in the proceedings initiated by the State Government under Section 98 of the Act.
3. Before appreciating these contentions raised by the parties and highlighted by their respective Counsel, it is appropriate for us to have a look at the factual matrix of the case. Alleging that the owners of the properties concerned have violated the provisions of the Act and the building Bye-laws, particularly Clauses 5.1 and 6.1, in constructing the buildings in contravention of the sanctioned plan, the Commissioner of the Corporation initiated proceedings against each of the owners under Section 321 of the Act and passed the provisional orders specifying the portions of the deviations made by each of the owners in their respective buildings. Orders so passed by the Commissioner were served on the owners of the properties as required under Sub-section (2) of Section 321 of the Act. The Commissioner considered the objections filed by the owners and passed orders confirming the provisional orders under Sub-section (3) of Section 321 of the Act. The owners of the properties were directed to remove the unauthorised constructions within the stipulated period.
4. Being aggrieved by the above order of the Commissioner passed under Section 321(3) of the Act, the owners preferred appeals to the Standing Committee (Appeals) of the Corporation under Section 444 of the Act. The Standing Committee having heard the appeals on merit came to the conclusion that there is deviation of the sanctioned plans in the construction of the buildings. The Standing Committee, however, issued a direction to the Corporation to regularise the unauthorised constructions on humanitarian and compassionate grounds by imposing appropriate penalty on the owners. The Standing Committee passed resolutions accordingly.
5. It is seen from the statement of objection filed by the Corporation in Writ Petition No. 40314 of 1999 that the Commissioner appears to have initially referred the resolutions made by the Standing Committee to the Council under Sub-section (2) of Section 444 of the Act. It further appears that the Council returned the references to the Commissioner observing that the Government is likely to amend the existing building bye-laws and it directed that the Commissioner may make references for decision after amendments of the bye-laws. It is nobody’s case that the Commissioner, after return of the references by the Council, re-submitted the references to the Council for decision under Sub-section (2) of Section 444 of the Act.
6. When the matter stood thus, the Government of Karnataka, in exercise of the power under Sub-section (2) of Section 98 of the Act, initiated proceedings, issued notice to the Corporation to have its say in the matter with regard to the resolutions passed by the Standing Committee and passed the orders cancelling the resolutions of the Standing Committee. The owners of the properties being aggrieved by the order of the Government filed Writ Petitions in this Court.
7. Before the learned Single Judge, it was canvassed that the order of the Government is one without authority of law. It was also contended that the order of the Government is a nullity in the eye of law inasmuch as the same was made in utter violation of the principles of natural justice and fair play in action and without notice to the owners of the properties concerned. The learned Judge having elaborately considered the first contention in the premise of case law has come to the conclusion that the Government has power under Section 98 of the Act to initiate proceedings to cancel the resolutions passed by the Standing Committee. The learned Single Judge, however, found merit in the second contention of the owners of the property and has opined that though there is no specific provision under Section 98 of the Act to give notice and to hear the affected interest, the principles of natural justice should be read into the provisions. Having so opined, the learned Single Judge allowed the Writ Petitions, quashed the impugned orders of the Government and remanded the proceedings to the Government with a direction to hear the owners of the properties and then pass appropriate orders.
8. We have heard Sri Shaker Shetty, learned Senior Counsel, on behalf of the owners of the properties-appellants in Writ Appeal Nos. 593 to 601 of 2001 and other learned Counsel appearing for the owners in other Writ appeals and Sri Ashok Haranahalli, learned Senior Standing Counsel for the Corporation.
9. The arguments of Sri Shaker Shetty while attacking the impugned Government order passed under Section 98 of the Act are three-fold. According to Sri Shaker Shetty, the Government would acquire authority to take action under Sub-section (2) of Section 98 only when it receives the resolutions referred to in Sub-section (1) of Section 98 and since no resolution passed by the Standing Committee was sent by the Commissioner or received by the Government, initiation of the proceedings was wholly without authority of law. The second contention is that since the resolution passed by the Standing Committee has attained finality under Sub-section (2) of Section 444, such resolution cannot be set at naught by the Government by virtue of the power conferred upon it under Sub-section (2) of Section 98 of the Act. The third contention of Sri Shaker Shetty is that none of the grounds stated in Sub-section (2) on the basis of which the Government could validly exercise the power under Section 98 of the Act existed in the instant case and, therefore, the initiation of the proceedings is invalid.
10. Sri Ashok Haranahalli, learned Senior Standing Counsel for the Corporation, per contra would submit that an extraordinary supervisory power is conferred on the State Government to protect the public interest in the event of any of the authorities of the Corporation under the Act doing anything contrary to the public interest or the interest of the Corporation or which has the effect of creating a situation contemplated under Sub-section (2) and therefore, the power conferred under Sub-section (2) cannot be restricted or limited so as to exclude the resolutions passed by the Standing Committee under Section 444(2) of the Act. Sri Ashok Haranahalli, arguing for the Corporation where they are appellants, while attacking the order of the learned Single Judge, would submit that though no exception can be taken to the order of the learned Single Judge to the extent of holding that the order to be made by the State Government under Section 98 of the Act should be in conformity with the principles of natural justice and fair play in action, the learned Judge has erred in directing personal hearing to the owners of the properties concerned. According to Sri Haranahalli, at the most, the owners are entitled to make representations to the Government and they cannot, as a matter of right, insist that they should be heard in person.
11. Having heard the learned Counsel for the parties, the following two points arise for decision:
(I) Whether, in the facts and circumstances of the case, it can be said that the Government lack power to interfere with the resolutions passed by the Standing Committee under Section 444 of the Act, by virtue of the power conferred upon it under Section 98(2) of the Act?
(II) Whether, in the proceedings envisaged under Section 98 of the Act, the owners of the properties concerned are entitled to personal hearing?
POINT NO.(I):
12. Section 98 of the Act reads:
“98. Submission of copies of resolution of Government and Government’s Power to cancel resolution and Orders.-(1) The Commissioner shall submit to the Government copies of all resolutions of the Corporation.
(2) If the Government is of opinion that the execution of any resolution or order of the corporation or of any other authority of officer subordinate thereto or the doing of any act which is about to be done or is being done by or on behalf of the corporation is in contravention of or in excess of the powers conferred by this Act or of any other law for the time being in force or is likely to lead to a breach of the peace or to cause injury or annoyance to the public or to any class or body of persons or is prejudicial to the interest of the corporation it may by order in writing, suspend the execution of such resolution or order, or prohibit the doing of any such act after issuing a notice to the corporation to show cause within a date to be specified which shall not to be less than fifteen days why,-
(a) the resolution or order may not be cancelled in whole or in part, or
(b) any bye-law or regulation concerned may not be repealed in whole or in part.
(3) Upon consideration of the reply, if any received from the corporation and after such enquiry as it thinks fit, Government may pass orders cancelling the resolution or order or repealing the bye- law or regulation and communicate the same to the corporation.
(4) Government may at any time, on further representation by the corporation or otherwise, revise, modify or revoke an order passed under Sub-section (3).
The language of Sub-section (2) is plain, precise, unambiguous and it does not admit more than one meaning. The three fold contentions advanced by Sri Shaker Shetty is not acceptable to us for more than one reason. According to Sri Shaker Shetty, the word ‘resolution’ occurring in the first part of Sub-section (2) is referable to the word ‘resolution’ which occurs in Sub-section (1) of Section 98. The word ‘any’ occurring in Sub-section (2) in the first part thereof indicates to the contrary. If the word ‘resolution’ occurring in first part of Sub-section (2) is referable to the ‘resolution’ occurring in Sub-section (1) of Section 98, then, Sub-section (2) could have contained the word ‘resolution’ in place of ‘any’ and, in that event, without much difficulty, we could have possibly held that ‘resolution’ occurring in Sub-section (2) in the first part of it is referable to the word “resolution’ occurring in Sub-section (1) of Section 98. Similarly, the word ‘such’ occurring in the latter part of Sub-section (2) qualifies only the word ‘resolution’ occurring in the first part of Sub-section (2) and not the word ‘resolution’ occurring in Sub-section (1) thereof. Having clarified the position as above, we say, it is trite that in order to initiate action contemplated under Section 98, one need not wait for the receipt of the resolution from the Commissioner, whether it is passed by the Council or the Standing Committee or the Commissioner himself or any other authority of the Corporation. In other words, the Government independently and suo moto also can initiate the proceedings under Sub-section (2) of Section 98. The initiation of action under Sub-section (2) of Section 98, however, depends upon certain conditions which could be regarded as conditions precedent. The Government, which is the donee of the power under Sub-section (2) could exercise that power only if, in a given case, it is of the opinion that if any resolution or order of the Corporation or of any other authority or an officer subordinate thereto, if implemented or executed, such thing is likely to lead to (i) breach of the peace, (ii) cause injury or annoyance to public or to any class or body of persons,(iii) is prejudicial to the interest of the Corporation. It is the common contention of Sri Shaker Shetty and Sri Ashok Haranahalli that the power of the Government under Sub-section (2) is not an ordinary power. It should not be invoked and exercised to correct each and every resolution/order made by the Corporation or of the Standing Committee or of the Commissioner or of any other authority and that power is required to be exercised only for certain stated reasons in Sub-section (2).
13. We agree with the above common contention of the learned Counsel. That seems to be the contour of the power of the Government under Sub-section (2) of Section 98 of the Act. However, in this case, in our considered opinion, the Government is justified in exercising its power under Sub-section (2) of Section 98 to interfere with the resolution passed by the Standing Committee under Section 444 of the Act inasmuch as the resolution of the Standing Committee was prejudicial to the interest of the Corporation as well as it has the effect of causing injury, annoyance to public. Further, the Standing committee passed the resolution in contravention of the Act and the bye-laws. If there existed conditions precedent to invoke the power, initiation of proceedings under Sub-section (2) is not liable to be condemned as unauthorised and without authority of law.
14. The other contention of the learned Senior Counsel for the owners that since the resolution of the Standing Committee passed under Section 444 attained finality in the absence of reference by the Commissioner to the Council and therefore, such resolution could not be meddled with or nullified by the Government is also not acceptable to us. Simply because Sub-section (3) of Section 444 attaches finality to a resolution of the Standing Committee, that provision has no effect of limiting or circumscribing the contours of the power trustedly conferred upon the Government to protect the public interest. Even assuming that though more than one construction could be placed on the provisions of Sub-section (2), it is appropriate that the Court should adopt the one which advances the legislative intendment and the public interest and not the one which thwarts it or is prejudicial to the public interest. If it is said that whatever be the harmful or prejudicial effect of a resolution passed by the Standing Committee, such resolution cannot be interfered with by the Government, it will lead to public mischief and result in injury to the public interest. Here is a case where it is the allegation of the Corporation that the owners of the properties have constructed buildings in utter violation of not only the provisions of the Act but also the building Bye-laws. The owners themselves have admitted these violations. It is quite curious that though the Standing Committee found that the owners have violated the building Bye- laws and put up the constructions unauthorisedly, for the reasons best known to them and quite curiously, have issued a direction to the Corporation to regularise the unauthorised constructions. In conclusion, we answer Point No. 1 in the negative.
POINT NO.(II):
14. ‘Affected should be apprised’ is the Constitutional creed flowing from postulates of Article 14 of the Constitution. The question whether the affected person is properly apprised in a given case, is a question of fact. The learned Single Judge quite rightly has opined that the owners of the properties concerned being the affected persons are entitled to be heard in the matter. Since we are not reviewing the impugned order of the Government on merit, we do not wish to lay down any standard rule regarding mode or kind of hearing to be given to affected persons in each and every case which the Government may initiate under Section 98 of the Act. It is for the Government to decide in individual cases whether it should permit the affected persons to be heard by way of representation as suggested by Sri Ashok Haranahalli or they should be heard in person. It all depends upon the complexity of a given case, and the Government should exercise its discretion fairly having regard to the facts and circumstances of each case. We hope and trust that these observations are sufficient to guide the Government when it proceed to hear the owners of properties before passing order under Section 98 of the Act.
15. In the result and for the foregoing reasons, we dismiss all the appeals, subject to the above observations, however, with no order as to costs.