The petitioner is stated to be a Company registered under the provisions of the Companies Act and is engaged in the business of manufacturing, stocking and distribution of conventional and nonconventional renewable energy, automobile and engineering products. It is submitted that the petitioner is a distributing agent of Total Gas Auto LPG (Liquefied Petroleum Gas) and had intended to start an LPG dispensing station.
2. The petitioner submits that the property where the retail outlet is sought to be established has been obtained on lease from the owner, and that necessary permit from the requisite department including the Chief Controller of Explosives, Petroleum and Explosives Safety Organisation ('PESO', for short) has been obtained. The petitioner states that on a previous occasion, the question of requirement of trade licence was an issue before this court in W.P.No.45560/2016 c/w W.P.No.50392/2018. It was contended that the petitioner did not require trade licence. The said aspect of the matter was considered in detail by this court and by order dated 27.05.2019, this court has disposed off the writ petition by holding that petitioner was required to obtain trade licence. It was further directed that the respondent-BBMP was to consider the application for trade licence filed by the petitioner in accordance with law and while doing so, the respondent-BBMP was required to take note of the objections raised by the Temple Trust which had objected for the grant of trade licence. The said order was taken up in appeal in W.A.No.2274/2019 which was disposed off as per the order dated 04.11.2019. It is relevant to note that the petitioners herein gave up their plea that trade licence was not required and on further consideration, the Division Bench has directed that licence as contemplated under Section 353 of the Karnataka Municipal Corporation Act, 1976 ("KMC Act", for short) is to be obtained and in that regard, the application of the petitioner at Annexure-'G1' was directed to be disposed off expeditiously while observing that the objections raised by the temple trust ought to be considered.
Subsequent to the order in writ appeal, it is submitted that the respondent-BBMP by order dated 16.11.2019 has directed for closure of the gas station while observing that circumstances exists that would indicate that there was a likelihood of nuisance being caused in the neighbourhood if petitioner were permitted to run the gas station at the stated site. In light of the impugned order, the application of the petitioner for issuance of trade licence having been rejected, the same is challenged by filing the present petition.
3. The learned counsel for petitioner has contended that the nature of enquiry leading to passing of the impugned order is contrary to the directions of the Division Bench and that the impugned order on its merits is contrary to law.
4. It is contended that the order that is passed by the respondent-BBMP is on the premise that:
I Safety and precautionary measures taken by the petitioner in setting up of LP Gas station has not been disclosed.
II The business has been commenced ignoring the existence of schools, hospitals, temples and residential houses.
III The smell of gas from the Auto LPG station cannot be ruled out and the same would constitute health hazard and the school children and staff would be affected.
IV That "Homa, Havana and Aarthi" being conducted in the temple would give room to gas coming in contact with fire leading to accidents.
5. It is contended by the petitioner that the grounds as made out and referred to above are contrary to the existing facts even otherwise would not justify passing of the impugned order on a correct appreciation of law.
6. Insofar as the ground as made out in point no.1, it is contended by the learned counsel for petitioner that they have obtained approvals, from the Chief Controller of Explosives, PESO, under the Static and Mobile Pressure Vessels (Unfired) Rules, 1981 ("SMPV Rules", for short) copy of which is marked as Annexure-'C', 'No Objection Certificate' issued by the Health Officer, BBMP dated 21.05.2016 as per Annexure-'D', No Objection Certificate by the Commissioner of Police dated 14.06.2016 as per Annexure-'E', licence approved by the Chief Controller of Explosives as per Annexure-'F'. On the basis of the abovementioned documents that have been produced, it is submitted that safety and precautionary measures have been taken and necessary permission has been taken from the requisite authorities and hence the ground made out at point No.1 is untenable.
7. Insofar as the contention that the business has been commenced ignoring the existence of schools, hospitals, temples and residential houses etc., at point no.II, it is pointed out that the property is situated in the commercial axis zone and establishment of Auto LPG outlet is permissible in the said zone as per the Revised Master Plan 2015.
It is further submitted that the school authorities have issued 'No Objection Certificate', copy of which is produced at Annexure-'Q', and accordingly the objection that it is impermissible for the retail outlet to function in light of presence of schools, hospitals, temples and residential houses is not tenable. This is more so as this court has held that consent of neighbours is not mandatory in previous litigation.
8. Insofar as contention that smell of gas as emanating from the Auto LPG station would cause health hazard and that school children and staff would be affected at point No.III, it is pointed out that the competent authorities under the Explosives Act, 1884 and SMPV Rules as well as the Fire Officer have approved the outlet. It is also contended that the school authorities themselves have issued letter as per Annexure-'Q'.
9. Insofar as the objection made out relating to possibility of fire accident in light of "Homa, Havana and Aarthi" being conducted in the temple at point no.IV, it is pointed out that the contention that is made does not have any scientific basis.
It is further contended that as per Section 353 (5) of the KMC Act, the Commissioner is empowered to grant licence subject to such restrictions and conditions as may be specified and that he has power to refuse grant of such licence if it is likely to cause nuisance in the neighbourhood, ought to be taken note of in a proper manner and be exercised in proper context.
It is further contended that as Auto LP Gas dispensing stations require number of permissions to be 10 obtained under the special enactments, the power of BBMP under Section 353 (5) of the KMC Act is to be sparingly exercised in light of the stringent requirements under the special enactments already having being met, which has ensured that aspects of public safety have already been taken note of.
It is further submitted that Section 6C (1) (c) of the Explosives Act, 1884 provides for refusal of licence if the licensing authority deems it necessary for the security of public peace or for public safety and the authority not having refused such permission, the impugned action of BBMP does not stand the test of legal scrutiny.
It is further contended that the Static and Mobile Pressure Vessels (Unfired) Rules, 2016 framed under the Explosives Act provides for various measures to be taken to ensure safety while storing Auto LPG, and that Rule 25 to 31 provides for measures to be taken to ensure safety. It is submitted that Rule 49 of the SMPV Rules 1981, provides for grant of licence only after inspection of the premises and after ensuring that all rules are followed. Accordingly, the licence has been granted under the Explosives Act, 1884 and SMPV Rules, 2016 after inspection and certification of safety of the premises. Therefore, the question of power of refusal under Section 353 (5) of the KMC Act is unavailable.
It is also contended that the reasons assigned in the impugned order must be taken note of in light of right under Article 19 (1) (g) of the Constitution of India and the restriction that could be imposed under Article 19 (6) and that it is clear that the restriction sought to be imposed in the present case is impermissible as not falling within the ambit of "reasonable restriction" as envisaged under Article 19 (6) of the Constitution of India.
10. The learned counsel for petitioner has further contended that the local Health Officer of BBMP having already issued NOC to the petitioner to run its establishment on 21.05.2016, cannot now resort to power under Section 353 (5) of the KMC Act and refuse grant of trade licence. It is further contended that Fire Department has provided clearance recently during the pendency of W.P.No.45560/2018 c/w W.P.No. 50392/2018 and accordingly, in light of the said development, respondent-BBMP cannot refuse to grant licence.
11. Sri. K. N. Puttegowda, learned counsel for respondent-BBMP has adverted to the contentions of the petitioner in detail. It is submitted that the petitioner has not come to the court with clean hands insofar as trade licence was not taken under Section 353 of the KMC Act at the first instance. That the impugned order is passed after taking note of the observations made by this court in W.P.No.45560/2018 c/w W.P.No.50392/2018 and also observations made in W.A.No.2274/2019.
12. It is specifically pointed out that the Division Bench in writ appeal did not permit carrying business in the absence of licence under Section 353 of the KMC Act and the said aspect ought to be taken note of while disposing off the writ petition.
13. Insofar as the contention that the respondent-BBMP has traversed beyond the directions issued by the Division Bench in holding of enquiry, it is contended that except for taking note of the objections raised by the neighbours, there is no contravention of directions of the Division Bench and that even otherwise, the impugned order is strictly within limits of the power conferred to refuse grant of licence on the ground of public nuisance.
14. It is specifically contended that the writ petition is not maintainable on the ground that the petitioner has not taken recourse to alternate remedy as contemplated under Section 444 of the KMC Act, 1976 as against the impugned action.
15. It is contended that wherever there is an efficacious remedy, the same must be availed of and reliance is placed on the judgment of the Rajasthan High Court in the case of Hanuman Das Chhagan Lal v. Union of India and Ors,2001 2 WLC 271]
16. It is further contended that the respondent- BBMP after careful consideration of the petitioner's application and after inspection of the site has passed a reasoned order giving reasons for rejection of licence, which ought not to be interfered with by way of judicial review in exercise of writ jurisdiction.
17. It is submitted that objections raised by the neighbours have also been taken note of. It is contended that mere issuance of 'No Objection Certificate' and permission to establish Auto LP Gas station from the authorities under the Special statute would not curtail the power conferred under Section 353 (5) of the Act.
18. The learned counsel for respondent-BBMP has submitted that the KMC Act provides for imposing of conditions wherever combustible things are stored as provided for under Section 325 (2) of the Act and that further directions can be issued by the Commissioner for abatement of nuisance of the kind as contemplated under Section 324 of the Act and the impugned order is passed in light of such power conferred.
19. It is further contended that there has to be balance of public and private rights and wherever there is public nuisance, there is an obligation on the public authority to ensure abatement of public nuisance and if sufficient steps are not taken, the Corporation itself would be held responsible for inaction or omission. As regards such a contention, reliance is placed on the judgment of Kerala High Court in the case of Kaloor Joseph v. District Collector,2000 SCCOnline(KER) 255.
20. Heard the counsel on both the sides.
21. The court is called upon to consider the validity of order dated 16.11.2019 whereby the respondent-BBMP has by its impugned order rejected application of the petitioner and refused to grant trade licence on the ground that the activity was likely to cause nuisance in the neighbourhood by invoking the power under Section 353 (5) of the KMC Act.
22. Section 353 (1) of the Act mandates requirement of licence for carrying on activity as contemplated under Schedule X of the Act. It is not in dispute that the petitioner has complied with the prescriptive requirements for the purpose of grant of trade licence and the impugned order is being passed in the context of power to refuse grant of license on the ground of likelihood of nuisance as contemplated under Section 353 (5) of the KMC Act.
23. While disposing off W.P.No.45560/2018, this court directed the consideration of application of trade licence filed by the petitioner and in doing so, to take note of the objections raised by the Temple Trust which had lodged a complaint opposing grant of trade licence.
24. This court had clarified the scope of refusal to grant trade licence in Para 30 of its order which reads as under:
"30. The statutory provision governing the grant of 'trade licences' is contained in Sections 353 and 354 of the KMC Act. The only restriction regarding grant of licence is under Section 353(5), where the Commissioner may
"refuse to grant such licence if it is likely to cause nuisance in the neighbourhood". Such restriction is traceable to Article 19 (6) of the Constitution of India, which provides for imposing restrictions on grounds of 'interests of the general public' as regards the fundamental right to carry on occupation, trade or business under Article 19 (1) (g) of the Constitution of India. Any restriction or condition upon grant of licence or refusal on grounds of likelihood to cause nuisance, is open to judicial scrutiny."
25. The judgment passed in W.P.No.45560/2018 c/w W.P.No.50392/2018 was taken up before the Division Bench in W.A.No.2274/2019, wherein this court had observed that the Commissioner is required to consider the application of the petitioner and while doing so, to take note of the objections of the Temple Trust and such consideration was to be made expeditiously. The Division Bench upheld the directions made in Para 39 of the judgment which reads as follows:
"39. However, it is made clear that the respondent-BBMP while considering the application of the petitioner at Annexure-G1 is entitled to take note of the objections raised by the complainant-temple trust as per law and strictly in light of the observations made above. As regards the requirement of obtaining trade licence by the petitioner, in light of the discussion and finding at point no.1 for consideration, it is held that the petitioner is required to obtain the trade licence".
26. Pursuant to the disposal of the writ appeal, respondent-BBMP has inquired into the matter and has purportedly in exercise of power conferred under Section 353 (5) of the Act rejected grant of licence observing that permitting continuance of activity is likely to cause nuisance in the neighbourhood.
27. The finding that is recorded in the impugned order are that the smell of gas is not ruled out and hence "the continuance inhaling of such gas would cause extensive health hazard", that children and staff of the school would be exposed to inhaling of such gas, that as "Homas and Havanas" are performed in the nearby temple there exists possibility of accidents when gas comes into contact with "fire of Agnikunda". While holding so, respondent-BBMP has recorded the finding that "running of gas station, at the given place is likely to cause nuisance in the neighbourhood" and accordingly, directed closure of the establishment and in effect rejected the application for grant of trade licence.
28. While dealing with the exercise of power to refuse grant of license if it is likely to cause nuisance in the neighbourhood, it is ought to be taken note of that power of the respondent-BBMP to grant licence is as per stipulation under Section 353 r/w Schedule X and prescriptive conditions as are found in the prescribed application of respondent-BBMP, copy of which is enclosed as Annexure-'G1'. Upon compliance with the prescriptive requirement, the respondent BBMP has resorted to exercise its power for refusal under Section 353 (5), holding that the activity if permitted is likely to cause nuisance.
29. The similar provision relating to power of the authority to refuse grant of licence if it is contrary to public interest came up for consideration before the Apex Court in the case of State of U.P. and Another v. Raja Ram Jaiswal and Another, 1985 3 SCC 131], wherein the court has drawn a distinction between exercise of power to satisfy adherence to prescriptive conditions and the consideration relating to interpreting the stipulation to decline grant of licence on the ground of public interest.
30. Taking note of such distinction in the present case, insofar as interpretation of the conditions under Section 353 of the KMC Act as contained in the prescribed application relating to grant of trade licence, there has to be strict compliance in light of the requirement being prescriptive, in nature.
31. The question before this court in the present factual matrix is however as regards exercise of power of refusal to grant licence under Section 353 (5) of the KMC Act, which deals with the discretionary power to refuse grant of licence if there is likelihood of causing nuisance.
32. As to what would constitute nuisance is a matter that requires application of mind by the respondent-BBMP.
33. The nuisance as contemplated under Section 353 of the KMC Act is to be construed to be public nuisance and if that were to be so, it should be ".. an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity (See Para 11 in AIR 2009 SC 1868). This power cannot be exercised at the instance of any one of the neighbours to settle a private dispute or with respect to a complaint about private nuisance.
34. The judgments relied upon by the respondent in the case of Vasant Manga Nikumba and Others v. Baburao Bhikanna Naidu (Deceased), 1995 Supp4 SCC 54], Suhelkhan Khudyarkhan and Anr. v. State of Maharashtra and Ors, 2009 AIR(SC) 1868 deal with the conceptual understanding of nuisance about which there is no dispute. There is also no quarrel with the proposition as laid down by the Apex Court in the case of Consumer Action Group and Another v. State of T.N. and Others, 2000 7 SCC 425], wherein it has been held even the exercise of fundamental rights should be within reasonable limits and could be curtailed where it makes in road into public rights. However, while construing as to whether in the present case the exercise of right to trade by the petitioner has caused public nuisance is the matter in question.
35. It must be noted that there is a great deal of discretion, that is conferred in Section 353 (5) of the KMC Act. Greater the discretion conferred greater the caution to be observed in its exercise. If the exercise of fundamental right under Article 19 (1) (g) of the Constitution of India is sought to be prevented, the authority should be much more circumspect in the exercise of the discretion where the authority seeks to refuse the grant of a licence under Section 353 (5) of the KMC ACt. The authority needs to keep in mind that where there would be a curtailment of a fundamental right the facts must make out a strong case justifying such curtailment.
36. Accordingly, in the present case the exercise of right to trade by the petitioner not being in dispute, the burden to justify its curtailment is on the respondent.
37. The running of an Auto LPG Enterprise by itself cannot be stated to be an enterprise causing public nuisance. The question as to whether the surroundings in the vicinity of which the outlet is opened would require a different standard to be applied is to be looked into. While dealing with the aspect of nuisance as noticed, it is not nuisance caused to a particular person, but nuisance vis- -vis the local environment and something more than inconvenience to the immediate neighbour. This aspect of the matter has been considered in the case of Behari Lal v. J. Maclean and Ors, 1924 AIR(ALL) 392 wherein the court has held that reference to inconvenience and nuisance must be of such decree that substantially it would be nuisance to public at large. The court while dealing with the question of nuisance at Para 5 having taken note of degrees of inconvenience in case of activity in an urban area has observed as follows:
"5. Whether anything is a nuisance or not is a question to be determined not merely by an abstract consideration of the thing itself but with reference to its circumstances and where a locality is used for the purpose of carrying on a trade or manufacture, the fact that such trade or manufacture does exist elsewhere, not far from the place, cannot be left out of account. As pointed out by Clerk and Lindsell, the affairs of life in a dense neighborhood cannot be carried on without mutual sacrifices of comfort; and in all actions for discomfort the law must regard the principle of mutual adjustment; and the notion that the degree of discomfort, which might sustain an action under some circumstances, must, therefore, do so under all circumstances is as untenable as the notion that if the act complained of was done in a convenient time and place, it must, therefore, be justified, whatever was the degree of annoyance that was occasioned thereby, (Clerk and Lindsell on Torts, 6th edition, p. 419)".
38. In the present case, what calls for consideration is as to whether setting up of Auto LPG Station in the midst of the area where there is stated to be school, hospital and temple in the vicinity would amount to likelihood of causing nuisance.
39. This court in the earlier round of litigation has noticed at Para 25 in W.P.No.45560/2018 c/w W.P.No.50392/2018 that where the property where the retail outlet has been established is situated in a Commercial Axis. It is also noticed that the Revised Master Plan 2015 which incorporates "Zoning of land use and Regulations" approved by the Government vide G.O.No.UDD 540 BEM AA SE 2004 dated 22.06.2007) provides that the usage as provided under the category of C-2 which includes 'fuel stations and LPG storage' is permissible in the case of commercial axis and accordingly observed that the proposed outlet of the petitioner could be permissible in the current location.
40. In the present facts, taking note of the permissibility of the activity, the case that is made out by the respondent-BBMP of nuisance in the neighbourhood is to be subjected to greater scrutiny.
41. The apprehension of likelihood of fire accident has already been taken note of by the certificates granted by the Fire Department. Insofar as other inconveniences that are made out, no doubt, there are inconveniences to the neighbourhood, but that by itself cannot be construed as amounting to nuisance in light of the discussion supra and be a ground to reject grant of trade licence. It is also to be noted that the petrol bunk has been functioning during the pendency of the writ petition and has continued to till 16.11.2019. Necessary permission by the Fire Department has been granted during the pendency of the present proceedings and there has not been any instance of any accident. The inconvenience as a result of functioning of the Auto LPG Dispensing station could be at best be described as normal inconvenience that may go along with the presence of public utility which needs to be put up with larger public interest. The impugned order passed by the respondent-BBMP by way of enquiry report cannot be stated to be backed by scientific material pointing to the likelihood of nuisance. In light of nature of right being exercised under Article 19 (1) (g) of the Constitution of India, the restriction also needs to be construed in an appropriate manner. The finding of likelihood of nuisance is not a legally tenable finding. The authority while exercising power of licencing should lean towards permitting the activity with additional conditions so as to take note of the precautions but it could never be that power is exercised to refuse grant of permission so as to prohibit exercise of such right except in exceptional circumstances, which is not the case herein.
42. No doubt as against the order passed under Section 353 of the KMC Act refusing grant of licence, a statutory appeal is provided for under Section 444 of the KMC Act. However, as pointed out, availability of statutory remedy will not come in the way of this Court exercising its writ jurisdiction as against the impugned order, which is the settled position of law.
43. Learned counsel appearing for the respondent BBMP has relied on the judgment of Hanuman Das Jaganlal (supra) wherein the Rajasthan High Court has relegated the party to the alternative remedy of civil suit before the competent Civil Court by holding it to be an efficacious remedy.
44. On the other hand, learned counsel for the petitioner has reli
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ed on the judgment in the case of Harbanslal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors, 2003 AIR(SC) 2120 to contend that the rule of exclusion of writ jurisdiction by availability of an alternate remedy is a rule of discretion and not one of compulsion. The Apex court in the above judgment has appropriately laid down the law in this regard as follows: "In an appropriate case, inspite of availability of alternate remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: i) where the writ petition seeks enforcement of any of the fundamental rights; ii) where there is a failure of principles of natural justice; iii) where the order or proceedings are wholly without jurisdiction and or the vires of an Act is challenged". The said position of law is a settled position of law and in the present case, circumstance no. (i) is applicable in light of the petitioner seeking to enforce fundamental right under Article 19 (1) (g) of the Constitution of India. The present enquiry as to whether power under Section 353 (5) of the KMC Act is being exercised within legal limits of the law would require keeping in mind that the power of refusal to grant licence under Section 353 (5) of the KMC Act on the ground of likelihood to cause nuisance, ought to be traced and appropriately construed so as to fall within the restriction as envisaged under Article 19 (6) of the Constitution of India. This exercise is more suitable to be undertaken by this court while simultaneously exercising power of judicial review as regards the impugned order and is too important a matter left to be decided by the Standing Committee of the respondent- BBMP itself. Hence, the contention raised by the respondent is liable to be rejected. 45. Taking note of the above discussion and the impugned order, it would be a fit case to set aside the impugned order with a direction to the respondent- BBMP to reconsider the application and pass necessary orders in light of the discussion as made above as per procedure. In light of the prolonged litigation, the respondent-BBMP is to take action expeditiously not later than two weeks from the date of release of the order, which is the same period as granted by the Division Bench while allowing the appeal. It would not be out of place to observe that the petitioner's litigational journey is nearing its desired destination. Taking note of the repeated though amorphous allegation of malafide by the petitioner, this Court expects that the direction of this Court will be adhered to in letter and spirit without penalizing the petitioner for having sought for redressal by Court intervention and without raking up any settled and buried issue that has been previously adjudicated upon. 46. Accordingly, subject to the above observations, the petition is allowed.