Quasi Judicial Powers Can't Be Delegated; One Who Decides Must Hear : Karnataka High Court

Justice M Nagaprasanna while deciding a petition filed by one Chitrakala said,

"Manifold powers, duties and obligations are cast upon the Commissioner in terms of the Act, a few of them are quasi-judicial in nature as the Commissioner is empowered to adjudicate upon the rights of the parties. Adjudication upon the rights of the parties cannot but be a power that is quasi-judicial in nature. Therefore, quasi-judicial power will have to be exercised only by such an officer who is empowered to exercise and not by any other authority."

Case Background:

The petitioner has challenged the order dated 16.03.2019, passed by the Commissioner, declining to accept the claim of the petitioner and directing that the activity of the petitioner performed in her residential premises cannot be allowed to continue.

On an identical notice being issued to her on 30.08.2018, the petitioner had filed a writ petition challenging the notice. By order dated 11.02.2019, the high court had disposed of the writ petition with a direction to the BBMP to determine whether the activity conducted by the petitioner in her premises was permissible in terms of the notification dated 20.03.2015.

After the matter was remitted to the BBMP for determination in the manner which the Court had directed, proceedings were initiated by the Head of the Legal Cell, who heard the petitioner and the third respondent - Health Officer (who had inspected the premises of the petitioner and issued the notice on an earlier occasion). After the matter was heard by the Head of the Legal Cell, the Commissioner passed an order on 16.03.2019, declining to permit the activity that the petitioner was conducting in her residential premises.

Advocate Sunil S. Rao, appearing for the petitioner submitted that the Head of the Legal Cell could not have heard the matter and the Commissioner passing an order declining to permit the activity that the petitioner was carrying in her residential premises on such hearing, is unknown to law.

On the other hand Advocate Amith Deshpande, appearing for BBMP refuted the submission and contend that in terms of Section 66 of the Karnataka Municipal Act, 1976, the power of the Commissioner to hear and dispose of the matters are delegated to the Head of the Legal Cell, subject to the final decision of the Commissioner and the order passed by the Commissioner cannot be found fault with, is his emphatic submission.

Court findings:

The court noted that proceedings pursuant to the direction of this Court are admittedly initiated and heard by the Head of Legal Cell and the Commissioner who did not hear the grievance or the matter, as directed by this Court, has passed the impugned order. Therefore, as per the court, there was a case where the Commissioner who did not hear the matter had decided it. It would fall foul of the rudimentary principle of 'he who decides must hear.

It referred to the Apex court judgement in the case of Gullapalli Nageswara Rao v. A.P State Road Transport Corporation, AIR 1959 SC 308, wherein it was held that

"The fundamental principle of natural justice that in the case of quasi-judicial proceedings, the authority empowered to decide the dispute between opposing parties must be one without bias towards one side or other in the dispute. It is also a matter of fundamental importance that a person interested in one party or the other should not, even formally, take part in the proceedings though, in fact, he does not influence the mind of the person, who finally decides the case. This is on the principle that justice should not only be done but should manifestly and undoubtedly be seen to be done."

It also referred to the judgment of the Kerala High Court in the case of Union of India v. P. Andrew, 1996 SCC Online Ker 6 which had followed the Apex court judgement in the case Gullapalli Nageswara Rao v. A.P State Road Transport Corporation. The court noted that,

 "In the light of the judgment of the Apex Court and the judgment of the Division Bench of the High Court of Kerala, the justification of the learned counsel appearing for the BBMP would not hold water as indisputably, the Commissioner has never heard the parties."

Further, it held as follows;

"Section 66 of the Act, in my considered view can only be a delegation of his ordinary powers, duties and functions and not delegating quasi-judicial powers. Quasi-judicial powers cannot be bartered away contrary to duties and obligations imposed upon the Commissioner in terms of the statute."

Order of The Court

Justice Nagaprasanna set aside the order dated March 16, 2019 passed by the Commissioner and remitted the matter back to the hands of the Commissioner to hear the parties and pass appropriate orders in accordance with law. The court directed the exercise shall be completed within eight weeks.

It clarified that

"Setting aside of the order of the Commissioner impugned, would not however mean that the petitioner can restore the activity in the premises she was performing earlier. The consequential benefit of either the activity to be let or not, would depend upon the orders of the Commissioner in the proceedings now remitted.

Case Title: Chitrakala v. State of Karnataka

Case No: Writ Petition No.14459/2019

Date of Order: 28th Day of July 2021

Coram: Justice M. Nagaprasanna

Click Here To Read/ Download The Order