Writ Petition No. 1679 of 2017 · The High Court
Case Details
- 1 - NC: 2025:KHC:16113 WP No. 1679 of 2017 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 1679 OF 2017 (GM-KLA) BETWEEN B.C. SANDEEP AGED ABOUT 31 YEARS, S/O. CHENNE GOWDA, WORKING AS ASSISTANT ENGINEER, BRUHAT BENGALURU MAHANAGARA PALIKE, OFFICE OF THE CHIEF ENGINEER, N.R. SQUARE, BANGALORE-560 002 & R/AT NO.93, 6TH MAIN, 3RD CROSS, NAGENDRA BLOCK, BANASHANKARI, III STAGE, SBM COLONY, BENGALURU-560 050. (BY SRI. SHIVAPRASAD SHANTANAGOUDAR., ADVOCATE) ...PETITIONER Digitally signed by SHWETHA RAGHAVENDRA Location: HIGH COURT OF KARNATAKA AND 1. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF URBAN DEVELOPMENT, VIKAS SOUDHA, DR. AMBEDKAR VEEDHI, BENGALURU-560 001. 2. BRUHAT BENGALURU MAHANAGARA PALIKE N.R. SQUARE, BENGALURU-560 002, REPRESENTED BY ITS COMMISSIONER. 3. KARNATAKA LOKAYUKTA M.S. BUILDINGS, - 2 - NC: 2025:KHC:16113 WP No. 1679 of 2017 DR. AMBEDKAR VEEDHI, BENGALURU-560 001, REPRESENTED BY ITS REGISTRAR.
Legal Reasoning
(BY SRI. MAHANTESH SHETTAR., AGA FOR R1; SRI. PAVAN KUMAR., ADVOCATE FOR R2; SRI. K. PRASANNA SHETTY., ADVOCATE FOR R3) …. RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS LEADING TO THE ORDER DTD16.3.2016 AND CHARGE SHEET DTD 13.7.2016 AND QUASH (i) ORDER OF GOVERNMENT DTD16.3.2016 (UNDER ANNEXURE-E TO THE WRIT PETITION) ISSUED BY THE R-1 / STATE GOVERNMENT AND (ii) CHARGE SHEE DTD13.7.2016 (UNDER ANNXURE-F TO THE W.P.) ISSUED BY THE R- 3 BY ISSUE OF A WRIT IN THE NATURE OF CERTIORARI AND GRANT ALL CONSEQUENTIAL BENEFITS AND ETC. THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING BEEN RESERVED FOR ORDERS ON 02.04.2025, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ CAV ORDER 1. The Petitioner is before this Court seeking for the following reliefs:
Decision
a. Quash (i) order of Government in No. NaAhEe 38 MNU 2016 dated 16.03.2016 (under Annexure-E to the writ petition) issued by the 1st Respondent/State Government and (ii) charge sheet bearing No. Lok/ARE-6/ENQ-125/206 dated 13.07.2016 (under Annexure-F to the writ petition) issued by the R3 by the issue of the writ in the nature of the certiorari and grant all consequential benefits. b. Issue such other appropriate writ, order or direction as this Hon’ble court deems fit to grant in the interest of justice and equity, including the award of costs of this writ petition. - 3 - NC: 2025:KHC:16113 WP No. 1679 of 2017 2. The Petitioner was appointed as Assistant Engineer in the Bruhat Bengaluru Mahanagara Palike (BBMP) on 7.06.2010. In respect of building situate at No.72, 7th Cross, Jayanagar I Block coming under ward No.153 of Hombegowdanagar which has been constructed in violation of sanction plan, on 17.08.2013 the jurisdictional Assistant Executive Engineer had issued a provisional order under Sub-section (1) of Section 321 of the Karnataka Municipal Corporation Act 1976 (for short herein after referred to as “KMC Act”) to remove the violation of the sanction plan. No reply having been received, on 26.8.2013 a confirmatory order under Sub-section (3) of Section 321 of the KMC Act was passed directing the owner to remove the deviations failing which action will be taken under Section 464 of the KMC Act. 3. There were certain transfers, and the Petitioner assumed charge of ward No.153 of Hombegowdanagar on 21.10.2013. The - 4 - NC: 2025:KHC:16113 WP No. 1679 of 2017 confirmatory order had been placed before the Executive Engineer to take necessary action. The owner of the property had filed an appeal before the Karnataka Appellate Tribunal in Appeal No.1059 of 2013, where an order of status quo was directed to be maintained on 25.11.2013. On account of the interim order, the BBMP could not take any action, the Executive Engineer did not pass any order, and the petitioner-Assistant Executive Engineer could not take any action. 4. Respondent No.3-Lokayukta took up suo moto investigation as regards the above property and certain other properties, and had sought for information as regards the officers working in the ward No.153 from 13.06.2013 to 25.05.2015. Since, the Petitioner who had taken charge on 21.10.2013 his name was also furnished by the BBMP to the Upalokayukta. Based on the said information, a report had been forwarded under Sub-section (3) of Section 12 of the Karnataka Lokayukta Act, 1984 - 5 - NC: 2025:KHC:16113 WP No. 1679 of 2017 (hereinafter referred to as “Lokayukta Act”) to the State Government. The State Government issued a notice to the Petitioner to answer the findings of the Upalokayukta. The Petitioner placed on record that he had taken charge only on 21.10.2013 and worked there till 20.09.2016. In view of the interim order in Appeal No.1059 of 2013 no action could be taken. 5. The reply being rejected, the State Government at the instance of the Upalokayukta entrusted the enquiry to the Upalokayukta vide order dated 16.03.2016. Based on the said entrustment a charge sheet came to be issued to the Petitioner and seven others on 13.07.2016, alleging that the Petitioner and certain others had a duty to remove the illegal construction and therefore they did not maintain absolute devotion to duty and as such committed dereliction of duty. Promotions being due, Department Promotion Committee had been constituted. The Petitioner's name, though included in the list, in the remark column it was indicated the - 6 - NC: 2025:KHC:16113 WP No. 1679 of 2017 pendency of the Lokayukta case was indicated and in that background his promotion was not considered. It is in that background that the Petitioner is before this Court seeking for the aforesaid reliefs. 6. The submission of Sri.Shivaprasad Shantanagowdar., learned counsel for the Petitioner is that; 6.1. The duty on part of the earlier Assistant executed Engineer has been properly discharged. A provisional order under sub- section (1) of Section 321 KMC Act has been passed. The same not having been complied with, a confirmatory order under sub-section (3) of Section 321 KMC Act has also been passed, which order has been stayed by the KAT. Hence, it is required for the officers to adhere to and respect the orders of the tribunal, and in that background, the question of there being any dereliction of duty in not carrying out the demolition would not arise at all. - 7 - NC: 2025:KHC:16113 WP No. 1679 of 2017 6.2. An appeal had been filed before the KAT, and an order of status quo was passed on 25.11.2013. Thus, no fault can be found in the actions of the Petitioner. 7. Sri.K.Prasanna Shetty., learned counsel for The Hon’ble Lokayukta-Respondent No.3 would submit that; 7.1. The violation had occurred prior and there was no action taken by the concerned officers and therefore the proceedings have been initiated and a charge sheet issued. 7.2. His submission is that the entire proceedings have to be continued, and this court ought not to interdict the matter at this stage. 8. Heard Sri.Shivaprasad Shantanagoudar, learned counsel appearing for the Petitioner, Sri.Mahantesh Shettar., learned AGA for Respondent No.1, Sri.Pawan Kumar, learned counsel for Respondent No.2 and Sri.K.Prasanna Shetty, learned counsel for Respondent No.3. Perused papers. - 8 - NC: 2025:KHC:16113 WP No. 1679 of 2017 9. The short question that would arise for consideration is; “Can an officer of the State be prosecuted for dereliction of duty when there is an order of stay, status quo or the like preventing him from discharging his duties”? 10. In the present case the facts are not in dispute in as much as there being a plan sanction granted as regards property No.72, 7th Cross, Jayanagar I Block coming under ward No.153 of Hombegowdanagar. The said owner having violated the plan is also not in dispute. Provisional order under sub-section (1) of Section 321 KMC Act issued on 17.08.2013 and confirmatory order having been passed on 26.08.2013 are also not in dispute. It is also not in dispute that the KAT in Appeal No.1059 of 2013 vide order dated 25.11.2013 directed the parties to maintain status quo. 11. Thereafter, the said order continued to be extended and was in force when report was submitted under - 9 - NC: 2025:KHC:16113 WP No. 1679 of 2017 Sub-section (3) of Section 12 of the Lokayukta Act as also when the entrustment was made by the State Government on 16.03.2016 as also when the charge sheet was filed on 13.07.2016 the order sheet in respect thereto having been produced along with the petition. 12. Such being the case, though as a consequence of a confirmatory order under sub-section (3) of Section 321 of the KMC Act proceedings were required to be taken under Section 464 of the KMC Act. The KAT having directed the parties including the BBMP to maintain status quo. The Executive Engineer could not pass orders under Section 464 and consequently, the Assistant Executive Engineer could not take any action for removal of the unauthorized construction. It is for the officers of the State to abide by the orders passed by the Court including the Tribunals and it is only after the order of status quo was vacated that the necessary steps could be taken. - 10 - NC: 2025:KHC:16113 WP No. 1679 of 2017 13. In the present case as noticed supra as on the date of issuance of a report under sub-section (3) of Section 12 as also on the date of entrustment dated 16.03.2016 as also on the date on which the charge sheet was issued i.e., 13.07.2016 the order of status quo was in force. Therefore, the Petitioner could not take any action in pursuance of the confirmatory order under sub-section (3) of Section 321 of the KMC Act. The same cannot therefore be held against the Petitioner, since the Petitioner was required to abide by the orders passed by the Karnataka Appellate Tribunal. 14. Hence, I answer the point raised by holding that an officer of the State being required to abide by the orders of Courts and Tribunals, if there is an order of such Court and Tribunal restraining the officer from performing any particular action, the non- performance thereof cannot be said to be a direliction of duty. In that view of the matter, the proceedings which have been taken up against the - 11 - NC: 2025:KHC:16113 WP No. 1679 of 2017 Petitioner could not have been so taken up. As such, I pass the following; i. ii. ORDER The writ petition is allowed. A certiorari is issued, the Government Order No.NaAhEe 38 MNU 2016 dated 16.03.2016 issued by respondent No.1 at Annexure-E and the charge sheet bearing No.Lok/ARE-6/ENQ- 125/2016 dated 13.07.2016 issued by respondent No.3 at Annexure-F insofar as the Petitioner is concerned are quashed. iii. It is made clear that this Court has not expressed any opinion regarding the other persons against whom Charge sheet has been laid. SD/- (SURAJ GOVINDARAJ) JUDGE SR List No.: 2 Sl No.: 2