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2014 Supreme(Kar) 597
High Court of Karnataka
N.K. PATIL, RATHNAKALA, JJ.
H.P. Suryanarayanachari
Versus
Karnataka Lokayukta & Others
Writ Petition No.32186 of 2014 (GM)
Decided On: 17-10-2014
For the Petitioner:V.N. Madhava Reddy, Advocate.
For the Respondents:R1, G. Devaraj, R2, K.V. Narasimhan, R3, M.S. Varadarajan, Advocates.
An order passed without affording the concerned party an opportunity to be heard is violative of principles of natural justice and liable to be set aside.
Headnote:
Lokayuktha - Jurisdictional Error - Karnataka Land Revenue Act, 1964 - Section 68 - The court set aside the approval granted by Lokayuktha to the comments of ARE-9 as it deviated from the proposal and violated principles of natural justice. The Joint Commissioner, B.B.M.P. was directed to afford opportunity to the writ petitioner before taking any further action.
Fact of the Case:
A complaint was lodged against the petitioner for blocking a pathway and encroaching the cart pathway for construction. The Lokayuktha approved a note directing the cancellation of the sanctioned plan and removal of encroachment without affording the petitioner an opportunity to be heard.
Finding of the Court:
The court found that the approval granted by Lokayuktha to the comments of ARE-9 deviated from the proposal and violated principles of natural justice. The court set aside the approval and directed the Joint Commissioner, B.B.M.P. to afford opportunity to the writ petitioner before taking any further action.
Issues: Jurisdictional error, violation of principles of natural justice
Ratio Decidendi: An order cannot be passed without affording the concerned party an opportunity to be heard. Approval granted by Lokayuktha deviating from the proposal and violating principles of natural justice is liable to be set aside.
Final Decision: The Writ Petition is disposed of. The scrutiny note of ARE-9 approved by Lokayuktha is set aside. The Joint Commissioner, B.B.M.P. is directed to afford opportunity to the writ petitioner and consider the same before taking any further action in the matter.
1. The order passed by the Karnataka Lokayuktha dated 22.4.2014 on the complaint of the third respondent herein is under challenge in this Writ Petition, whereby the note put up by the office of the Lokayuktha is endorsed as approved by the Lokayuktha.
2. A complaint came to be lodged by third respondent/a private individual on 11.7.2013 before the Karnataka Lokayuktha against the Joint Commissioner, B.B.M.P., Mahadevapura, Bangalore. The allegations in the complaint read that, the owner of Sy.No.179/2 i.e., the petitioner herein has blocked the pathway, which leads to the complainant's lands in Sy.Nos.180 and 182/1A and by encroaching the cart pathway, he is putting up construction. The construction has caused hardship to the public and also the owners of the abutting lands. Despite submitting complaint to the Joint Commissioner, BBMP, no action is taken.
3. The complaint was allotted to ARE-1 for scrutiny. Subsequently, the file was re-allotted to ARE-9 vide order dated 11.4.2014 of Lokayuktha for putting forth scrutiny note on the action to be taken in the matter.
4. It appears, on receipt of the note from the office of the Lokayuktha, the Joint Commissioner, B.B.M.P. submitted his comments to the effect that:
"On 1.10.2013 a recommendation is made to the Additional Director, Town Planning to cancel the plan sanctioned for the construction of the said building and that the plan sanctioned would be cancelled immediately after the receipt of approval from the chief office."
The ARE-9 put up his comments at para-34 and 35 vide note dated 22.4.2014, which read thus:
"34. The complainant has not submitted his comments inspite of affording sufficient opportunity. The comments offered by the respondent have gone undenied. Therefore, under these circumstances, this complaint can be disposed of by giving a direction to the respondent to cancel the plan sanctioned for the construction of the building in favour of the owner of the land bearing Sy.No.179/2 of Hoodi village, in accordance with law and for removal of the encroachment, if any, on the road in question within 4 months from the receipt of this order and to submit a compliance report within 15 days thereafter to the Registrar, Karnataka Lokayuktha, Bangalore.
35) Therefore, if approved, kind orders may please be passed to dispose of this complaint with a direction to the respondent to cancel the plan sanctioned for the construction of the building in Sy.No.179/2 of Hoodi village and to get removed the encroachment in the pot kharab area of 5 guntas of land (road) within 4 months from the date of receipt of this order and to submit a compliance report within 15 days thereafter to the Registrar, Karnataka Lokayukta, Bangalore."
The same is approved by the Lokayuktha vide endorsement dated 22.4.2014.
5. The petitioner herein is the owner of Sy.No.179/2 of Hoodi village.
6. Sri.Madhava Reddy, learned Counsel appearing for the petitioner submits that, the impugned order is an order passed without jurisdiction. The proper authority in the matter of a road or a pathway in a particular survey number is Revenue Authorities and without calling for the report from the Revenue Authorities, the order passed is vitiated. The Revenue Authorities acting under Section 68 of the Karnataka Land Revenue Act have cancelled the right of pathway, if any, after inspection of the spot and the same is published in the Karnataka Gazette dated June 14, 2001. Till now there is no challenge to the said order. The impugned order is passed exparte without affording opportunity to the petitioner to have his say in the matter. Hence, it is violative of principles of natural justice.
7. The respondents do not dispute that it is an exparte order passed without hearing the owner of the property/the petitioner herein.
8. The petitioner has produced the photographs evincing that the construction is in progress on the site. Sri.Madhava Reddy submits, by virtue of the above exparte order, if the second re
