Bagmane Tech Park issue. Karnataka Lokayukta usurps Judicial Review power of Constitutional Court.

Shri. B.S. Patil, (Judge Rtd) Karnataka Lokayukta

1. This write-up is based on the report published in today's edition of Times of India.  From the report, it is seen that Bagamane Tech Park, a Software Technology Park, has questioned the action of the Bruhat Bengaluru Mahanagara Palike in trying to demolish the alleged encroachments made by the Tech Park on the Rajakaluve. The report also says that the BBMP on Monday halted the drive. 

2. In the opinion of the author, the proceedings initiated by the Bagamane Tech Park before the Lokayukta and continuation of the proceedings amount to clear usurpation of the judicial review power of High Court under Article 226 of the Constitution of India.

3. The High Courts in India are empowered to issue the writs in the nature of Habeus Corpus, Mandamus, Prohibition, Quo-Warranto and Certiorari. The power under Article 226 is vide enough to deal with the action of the administrative authorities, quasi-judicial bodies, authorities exercising the power under subordinate and plenary legislation. The High Courts can strike down a plenary legislation and even a constitutional amendment by writ of mandamus. 

4. The Hon'ble Supreme Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691  dealt with the vast powers of High Court under Article 226 of the Constitution of India. The Supreme Court says 

"Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: “To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.” [Judicial Review of Administrative Action, 4th Edn., p. 540] We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available “to reach injustice wherever it is found”. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition."

5. The Hon'ble Supreme Court in S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124 : (1987) 2 ATC 82 relying on Minerva Mills Ltd. v. Union of India [(1980) 3 SCC 625 held that; 

"...judicial review is a basic and essential feature of the Constitution and no law passed by Parliament in exercise of its constituent power can abrogate it or take it away. If the power of judicial review is abrogated or taken away the Constitution will cease to be what it is. It is a fundamental principle of our constitutional scheme that every organ of the State, every authority under the Constitution, derives its power from the Constitution and has to act within the limits of such power. It is a limited government which we have under the Constitution and both the executive and the legislature have to act within the limits of the power conferred upon them under the Constitution."  

6. It may be noted that in Sampath Kumar case, the Supreme Court was dealing with power of the High Courts under Article 226 of the Constitution of India. 

7. The Karnataka Lokayukta Act 1994 was enacted to "improve the standards of Public Administration, by looking into complaints against the administrative actions including case of corruption, favoritism and official in discipline in administration machinery”. The Act provides for appointment of a Lokayukta and one more Upa Lokayukta to investigate and report on allegations or grievance relating to the conduct of public servants. 

8. Section 2(1) of the Act defines "action” to mean administrative action taken by way of decision, recommendation or finding or in any other manner and includes wilful failure or omission to act and all other expressions relating to such action shall be construed accordingly;

9. Section 2(2) is defines “allegation” in relation to a public servant includes any affirmation that such public servant has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person; was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motives; is guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as such public servant; OR has failed to act in accordance with the norms of integrity and conduct which ought to be followed by public servants of the class to which he belongs:

10. Section 2(5) defines “corruption” to include anything made punishable under Chapter IX of the Indian Penal Code or under the Prevention of Corruption Act, 1947.

11. Section 7 of the Act deals with matters which may be investigated by the Lokayukta & Upa Lokayukta. Section 7(b) says that Lokayukta may investigate where a complaint involving a grievance or an allegations is made in respect of such action or such action can be or could have been, in the opinion of the Lokayukta regarded in writing, the subject of a grievance or an allegation.  

12. Section 8 deals with matters which cannot be investigated by Lokayukta. Section 8 (1) (b) says that the Lokayukta cannot investigate any complaint if the complainant has or had, any remedy by way of appeal, revision, review or other proceedings before any tribunal, Court officer or other authority and has not availed of the same.

13. The grievance in question certainly falls within the Judicial Review of High Court under Article 226 of the Constitution of India. Where the complainant has an alternative remedy before the court of law and where any administrative action involves discretion, the Lokayukta has no power to investigate.

14. From the reports, it is seen that the grievance is not one pertaining to corruption. 

15. The entire proceedings according to the author are outside the purview of the Lokayukta Act 1994. What is disturbing is that the judicial review power its rested in the High Courts under Article 226 of the Constitution of India is sought to be usurped by the Lokayukta in the guise of enquiry into the “grievance of the Tech Park”. It is seen from the reports that the Lokayukta even gave press interview after the order was passed.

16. The initiation of the proceedings in question and their continuation constitute a dangerous precedent since any person aggrieved by  administrative action of statutory body can approach Lokayukta in the guise of raising grievance under Section 2 (8) instead of approaching the Constitutional Courts for the redressal of the grievances. There is certain possibility that a parallel judicial review institution is being created diluting or questioning the very power of High Courts.  

17. Karnataka Lokayuka decision is not only unconstitutional but the same amounts to creation of parallel power centre akin to constitution courts.  

S.Basavaraj, Senior Advocate, Bengaluru 

Report of Times of India 14 September 2022.

The Bruhat Bengaluru Mahanagara Palike (BBMP) on Monday halted its anti-encroachment drive at Bagmane Tech Park, following a Karnataka Lokayukta order to follow due legal procedures before demolishing properties the Palike says are illegally located on storm water drains (SWDs).

The directive follows a complaint by Bagmane Developers Pvt Ltd on Saturday. BBMP had earlier marked encroachments at the Bagmane Tech Park for demolition.

BBMP chief commissioner Tushar Giri Nath said the drive was halted after the Lokayukta took cognizance of the complaint and further action would be taken as per the Lokayukta's directions.

"As this process needs some time, while both parties are advised to co-operate with each other in ensuring that the work is undertaken in right earnest and expeditiously, this matter needs to be adjourned by three weeks," the order read.

Bagmane raised multiple concerns, including non-issuance of notice by BBMP, besides alleging that the civic body was in collusion with another realtor who has encroached the SWD which had resulted in blocking of water flow.

The BBMP argued that "the level (height) difference underneath the RCC drain put up by Bagmane was diminishing resulting in water-logging and flooding", and that the drain was on encroached land.

So far as the encroachment by the other realtor goes, the Palike said it had fought a case in the high court and it would follow the court order. Justice Patil, in his order dated September 12, says: “If the apprehension of the respondent (BBMP) is that the RCC drain is causing floods, the complainant (Bagmane) shall remove the stone slabs in precast cover slabs in identifiable places to enable the authorities to take the level difference.”

Justice Patil held that the authorities, however, shall not indiscriminately demolish or remove box drains because it is apprehended that such an act may result in flooding of the neighbourhood, including the complainant’s (Bagmane) property.

Justice Patil told TOI that after hearing Bagmane’s prayer, BBMP was ordered to serve prior notices about the encroachments before carrying out any demolition, besides following the HC order that requires authorities to measure parcels of land under dispute and issue notices. He pointed out that these buildings have come up after authorities granted permission for them.

“I have instructed officials present during the hearing to strictly follow legal procedures before razing properties,” he said. He said they will probe how BBMP or other agencies gave nod to construct buildings currently being hauled up for encroachment. Hr said he is with the Palike’s decision to raze illegal encroachments and all illegal properties should be demolished but it should be done only after following due legal process.