At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE S. SUNIL DUTT YADAV
For the Petitioners: B.V. Acharya, Senior Advocate a/w Sandesh Chouta, Senior Advocate, K.S. Harish, Advocate. For the Respondents: R1 & R2, K.N. Puttegowda, Advocate.
(Prayer: This Writ Petition is filed under Articles 226 & 227 of Constitution of India, praying to quash the order/final notice dated 23.12.2019 passed by the R-2 vide Annexure-A and etc.)
1. The petitioner No.1 is stated to be a Company engaged in the business of restaurant and micro breweries. It is submitted that the first petitioner Company has a valid trade licence and the said trade licence has been produced at Annexure-B and is valid till 31.03.2020.
2. The petitioners submit that pursuant to the final notice at Annexure-A dated 23.12.2019, the officials of respondent - Bruhat Bengaluru Mahanagara Palike (BBMP) have seized the premises of the petitioners on 24.12.2019.
3. It is submitted that the first petitioner had been carrying on its operations since the year 2014. It is further submitted that the notice at Annexure-A is untenable, as there is no adjudication as regards the grievance stated to have been voiced by the neighbours. It is submitted that the power of respondent - BBMP cannot be exercised in cases of noise pollution, as the power to take action as regards the complaint with respect to noise pollution is with the Police Authorities under the Noise Pollution (Regulation and Control) Rules, 2000.
4. It is also submitted by the learned Senior Counsel appearing on behalf of petitioners that the impugned notice is vague and before taking action pursuant to the notice at Annexure-A, no opportunity of hearing has been afforded to the petitioners.
5. The learned counsel appearing for respondent - BBMP has filed the statement of objections and has also vehemently argued that previously notices have been issued on the basis of complaints by the neighbours and there have been instances of noise pollution and taking note of such incidents, the complaints have been filed before the jurisdictional Police. A copy of the earlier complaints have been produced.
6. The attention of the Court is drawn to the First Information Reports dated 17.08.2018, 26.01.2019 and 23.12.2019 stated to have been registered in light of violation of conditions of the licence and on grounds of noise pollution. It is also submitted by learned counsel appearing for respondent - BBMP that there has been numerous complaints by the residents of locality also relating to the inconvenience caused due to haphazard parking of vehicles by the customers.
7. Heard both the sides.
8. Admittedly, the trade licence is in force and would expire on 31.03.2020. It is not in dispute that there were First Information Reports registered by the jurisdictional Police with respect to the incidents of noise pollution. Insofar as the incidents of noise pollution by the petitioners, the appropriate Authority to take action is the Police Department, which is the competent Authority under the Noise Pollution (Regulation and Control) Rules, 2000.
9. In the present case, what is called in question is the action of respondent - BBMP. If there have been any violation of terms of trade licence that is issued, no doubt, the respondent - BBMP has the power to issue notice and seek for enforcement of the same, however, procedural fairness is required to be followed which would include adjudication as to nature of violation complained of, after affording reasonable opportunity to the petitioners. If the respondent - BBMP in the present case was intending to take action the notices issued ought to have been followed up by affording an opportunity of personal hearing and an adjudication as regards the violations complained of, all of which ought to have preceded the impugned action of closing down the petitioners' business establishment.
10. In light of the right to conduct trade as per the trade licence issued, whenever there is a complaint to respondent - BBMP, notice ought to be issued and there must be adjudication as regards to the nature of complaint and decision must be arrived at after hearing the petitioner whose rights are likely to be affected by an adverse order.
11. Often the orders are passed by respondent - BBMP without following the requisite procedure that would result in defeating otherwise legitimate attempts of BBMP, which reflects poorly on the BBMP and its officials.
12. In the present case, the trade licence is in force till 31.03.2020. At the time of renewal of trade licence, power is available to the respondent - BBMP under Section 343 read with Section 353 of KMC Act and applicable Bye-laws to take an appropriate decision. Though, the petitioner would contend that trade licence itself is not required, at this juncture, an adjudication of such question is not called for. However, the said contention is kept open to be considered at an appropriate point of time and in appropriate proceedings.
13. At this point of time, all that could be stated is that the petitioners may be permitted to continue running its business enterprise, subject to addressing grievances of residents as reflected in the statement of objections of respondent - BBMP. Clearly, the impugned notice is legally untenable as being vague and not containing any adjudication as regards the allegations stated to have been made out by the local residents.
14. Accordingly, the petition is disposed of, subject to the following:-
(i) The impugned notice at Annexure-A dated 23.12.2019 is set aside. Consequent to setting aside of notice at Annexure-A, the respondent - BBMP is directed to unlock the seized premises of the petitioners forthwith
(ii) The petitioners would undertake to ensure that the activities of petitioners would not result in any public nuisance by ensuring that the music, if played, would be within the permissible decibel levels.
(iii) The petitioners would take necessary steps to ensure that the customers who come to the petitioners' establishment would not park their vehicles in a haphazard manner ther
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eby causing inconvenience to the public. (iv) The petitioners would install a Closed Circuit camera at the property to ensure that there is security as well as evidence as regards untoward incidents, which ought to be maintained as record and be accessible to the respondent - BBMP as and when required. (v) It is made clear that if the respondent - BBMP were to take any steps as regards complaints by local residents, the same must be by adhering to the strict procedure whereby notice is to be issued to the petitioners, hearing to be afforded and adjudication to be made on the complaint before taking further action as contemplated.