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2022 Supreme(Online)(Kar) 60546
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER 2022
PRESENT
THE HON’BLE MR. ALOK ARADHE
ACTING CHIEF JUSTICE
AND
THE HON’BLE MR.JUSTICE S. VISHWAJITH SHETTY
W.P. NO.18278 OF 2021 (GM-RES)
C/W
W.P. NO.19421 OF 2021 (GM-RES)
IN W.P. NO.18278 OF 2021
BETWEEN:
SRI. HARISH A.S.
ADVOCATE
AGED ABOUT 41 YEARS
S/O SINGARAIAH
NO.226, 1ST MAIN, 5TH PHASE
(WOC) THIMMAIAH ROAD
MAHAGANAPATHI NAGAR
BENGALURU 560 010.
... PETITIONER
(BY MR. PRASHANTH BHUSHAN, ADV., FOR
MR. PRINCE ISAC, ADV.,)
AND:
1.
STATE OF KARNATAKA
REP. BY THE CHIEF SECRETARY
VIDHANA SOUDHA
BENGALURU 560 001.
R
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2.
STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY
HOUSING AND URBAN
DEVELOPMENT AUTHORITY
VIDHANA SOUDHA
BENGALURU 560 001.
3.
THE BENGALURU DEVELOPMENT AUTHORITY
REPRESENTED BY ITS COMMISSIONER
KUMARA PARK PAST
BENGALURU 560 020.
4.
SRI. S.R. VISHWANATH
CHAIRMAN
BDA, BANGALORE
S/O K. RAMAIAH
AGED 58 YEARS
PRESENTLY R/AT
NO.14/1, APOORVALOKA
SINGANAYAKANAHALLI VILLAGE POST
YELAHANKA HOBLI
BENGALURU NORTH TALUK
BENGALURU 560064.
5.
S.M. RAM PRASAD, KSAS
FINANCE MEMBER
BDA BANGALORE
KUMARA PARK PAST
BENGALURU 560 020.
6.
DR. H.R. SHANTHARAJANNA, KES
ENGINEER MEMBER
BDA, BANGALORE
KUMARA PARK PAST
BENGALURU 560 020.
7.
SMT. SUMA J (I/C)
TOWN PLANNER MEMBER
BDA, BANGALORE
KUMARA PARK PAST
BENGALURU 560 020.
... RESPONDENTS
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(BY MR. PRABHULING K. NAVADGI AG A/W
MR. VIJAY KUMAR A. PATIL, AGA FOR R1 & R2
MR. D.N. NANJUNDA REDDY, SR. COUNSEL FOR
MR. K. KRISHNA, ADV., FOR R3
MR. S.S. NAGANAND, SR. COUNSEL FOR
MR. BIPIN HEGDE, ADV., FOR R4
MR. B. VACHAN, ADV., FOR R5
MR. J.C. KUMAR, ADV., FOR R6)
- - -
THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASHING THE
ORDER DATED
24.11.2020 IN NO.UDD.129 BAS/2020
ISSUED BY THE FIRST RESPONDENT A COPY OF WHICH IS
PRODUCED AT ANNEXURE-B. ISSUE A WRIT OF QUO-
WARRANTO
OR
ANY
OTHER
APPROPRIATE
WRIT
PROHIBITING THE 4TH RESPONDENT FROM EXERCISING
DUTIES
AS
THE
CHAIRMAN
OF
THE
BANGALORE
DEVELOPMENT AUTHORITY. ISSUE A WRIT OF QUO-
WARRANTO
OR
ANY
OTHER
APPROPRIATE
WRIT
PROHIBITING THE R5 TO R7 FROM EXERCISING DUTIES AS
THE
FINANCE
MEMBER,
ENGINEER
MEMBER,
TOWN
PLANNER MEMBER, RESPECTIVELY OF THE BANGALORE
DEVELOPMENT AUTHORITY & ETC.
IN W.P. NO.19421 OF 2021
BETWEEN:
SRI. HARISHA A.S.
ADVOCATE
S/O SINGARAIAH
AGED ABOUT 43 YEARS
NO.226, 1ST MAIN, 5TH PHASE (WOC)
THIMMAIAH ROAD
MAHAGANAPATHI NAGAR
BENGALURU-560010.
... PETITIONER
4
(BY MR. PRASHANTH BHUSHAN, ADV., FOR
MR. PRINCE ISAC, ADV.,)
AND:
1.
STATE OF KARNATAKA
REP. BY THE CHIEF SECRETARY
VIDHANA SOUDHA
BENGALURU-560001.
2.
SRI. S.R. VISHWANATH
S/O K. RAMAIAH
AGED 58 YEARS
MEMBER OF THE LEGISLATIVE ASSEMBLY
KARNATAKA VIDHANA SOUDHA
PRESENTLY RESIDING AT
NO.14/1, APOORVALOKA
SINGANAYAKANAHALLI
VILLAGE AND POST
YELAHANKA HOBLI
BENGALURU NORTH TALUK
BENGALURU-560064.
... RESPONDENTS
(BY MR. PRABHULING K. NAVADGI, AG A/W
MR. VIJAY KUMAR A. PATIL, AGA FOR R1
MR. S.S. NAGANAND, SR. COUNSEL FOR
MR. BIPIN HEGDE, ADV., FOR R2)
- - -
THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT
OF
MANDAMUS
FORTHWITH
IN
CONSIDERATION
OF
ANNEXURE-C DATED 04.10.2021 AND TO TAKE TIME
BOUND ACTION TO DISQUALIFY THE RESPONDENT NO.-2
FROM
CONTINUING
AS
MEMBER
OF
LEGISLATIVE
ASSEMBLY
IN
THE
15TH
KARNATAKA
LEGISLATIVE
ASSEMBLY IN TERMS OF ARTICLE 191 (1) (A) OF THE
CONSTITUTION
FOR
HOLDING
THE
POST
OF
BDA
CHAIRMAN, WHICH IS AN OFFICE OF PROFIT.
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THESE W.Ps. HAVING BEEN HEARD AND RESERVED
FOR
ORDERS
ON
24.08.2022,
COMING
ON
FOR
PRONOUNCEMENT OF ORDERS THIS DAY, ACTING CHIEF
JUSTICE., MADE THE FOLLOWING:
['PRINCE ISAC', 'GA', 'B VACHAN', 'KUMAR J C']
These petitions have been filed pro bono publico.
The grievance of the petitioner in W.P.No.18278/2021
pertains to appointment of one Mr.S.R.Vishwanath,
Member of Legislative Assembly from Yelahanka
Assembly Constituency as Chairman (hereinafter
referred to as 'the Chairman', for short) of Bangalore
Development Authority (hereinafter referred to as 'the
Authority' for short). In W.P. No.19421/2021, the
petitioner seeks a mandamus to the State Government
to take time bound action for disqualifying the
Chairman in terms of Article 191(1)(a) of the
Constitution of India from holding the post of
Chairman of Authority which is an office of profit.
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2.
The controversy involved in these petitions
lie in a narrow compass. The petitioner is an advocate
by avocation. Section 3 of the Bangalore Development
Authority Act, 1976 (hereinafter referred to as the
'BDA Act' for short) deals with constitution and
incorporation of the Authority. Section 3(5) of the
BDA Act provides that the Chairman, the Engineer
Member and Finance Member and the Town Planner
Member shall be whole time members and the other
members shall be part time members. According to
the petitioner, the Chairman who is a sitting MLA
from Yelahanka Constituency cannot be whole time
member of the Authority and therefore, is ineligible to
hold the post. In addition, the grievance as pleaded in
writ petition namely W.P. No.18278/2021 that no
method of appointment has been prescribed for
appointment to the posts of Engineer, Finance and
Town Planner Members of the Authority. In the said
writ
petition,
the
petitioner
has
assailed
the
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notification dated 24.11.2020 by which the Chairman
has been appointed as Chairman of the Authority.
3.
The petitioner also seeks a writ of quo
warranto prohibiting Chairman and respondent Nos.5
to 7 from performing the duties of the post of
Chairman, Engineer, Finance and the Town Planner
Members of the Authority. The petitioner also seeks a
writ of mandamus to constitute and incorporate the
Authority in accordance with Section 3 of the BDA Act
after framing the Rules and guidelines.
4.
Under Article 192 of the Constitution of
India,
the
petitioner
has
raised
issue
of
disqualification of the Chairman by filing a petition on
04.10.2021 before His Excellency the Governor.
Thereafter, on 26.10.2021, W.P.No.19421/2021 has
been filed seeking a writ of mandamus to take a time
bound action to disqualify the Chairman from
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continuing as Member of Legislative Assembly in 15th
Karnataka Legislative Assembly in terms of Article
191(1)(a) of the Constitution of India for holding the
post of Chairman of the Authority.
5.
Learned Senior counsel for the petitioner
submits that Chairman is a Member of Legislative
Assembly from Yelahanka Constituency and therefore,
cannot be a full time member of the Authority in view
of Section 3(5) of the BDA Act. It is further submitted
that merely because respondent No.4 is MLA, he is
not eminently qualified to be appointed as Chairman.
It is also submitted no method has been prescribed
for selection of Engineer, Finance and Town Planner
Members of the Authority and appointment to the
aforesaid posts has to be made through a process of
selection. It is urged that respondent Nos.5 to 7 have
not been appointed in a manner known to law.
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6.
It is further urged that BDA is not the
Committee as defined under Section 2(a) of the
Karnataka Legislature (Prevention of Disqualification)
Act, 1956 (hereinafter referred as 'the 1956 Act'). It is
pointed
out
that
even
though
petitioner
had
approached His Excellency the Governor, till today, he
has not received any response. In support of
aforesaid submissions, reliance has been placed on
the decision of the Supreme Court in CENTRE FOR
PIL AND ANOTHER Vs. UNION OF INDIA AND
ANOTHER1.
7.
Learned Advocate General has submitted
that the Authority is the Committee as defined under
Section 2(a) of 1956 Act and referred to in Section 3 of
the BDA Act and the Chairman is
