IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION NO.31027 OF 2018 AND WRIT PETITON NO.31713 OF 2018 (LB-RES) Between:
1. Krishnaiah @ Papanna Aged about 65 years S/o late Ramaiah 2. K.Narayanaswamy Aged about 45 years S/o Sri.Krishnaiah @ Papanna Both are residing at Bodhana Hosahalli Village Anugondanahalli Hobli Hosakote Taluk Bengaluru Rural District.
(By Sri.M.V.C.Reddy, Advocate) And:
... Petitioners 1. The State of Karnataka Panchayath Raj and Rural Development Rep by its Principal Secretary Vikas Soudha Dr.Ambedkar Veedi Bangaluru – 560 001.
2. The Taluka Panchayat Hosakote Tauk, Hosakote – 562 114 Rep. by its Executive Officer 3. Muthsandra Grama Panchayat Muthsandra, Hosakote Taluk – 562 114 Represented by its Panchayat Development Officer 4. K.Manjunath 37 years, S/o Kempaiah 5. Kempanna 65 years, S/o Munishamigowda 6. B.K.Chandrappa 42 yeas, S/o Krishna 7. N.Vijayalakshmi 38 years, W/o Muniraju All are residing in Bodanahosahalli Village Somethanahalli Post Anugondanahallil Hobli Hosakote Taluk Bengaluru Rural District – 560 067.
8. Thasildar Hosakote Taluk Bengaluru Rural District. ... Respondents (By Sri.M.A.Subramani, AGA for R1 & R8 Sri.M.S.Devaraju, Advocate for R2 & R3 Sri.N.S.Vijayanth, Advocate for R4 to R7) These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the trade license cancellation order dated 09.07.2018 issued by the respondent No.3 based on the alleged directions/instructions dated 07.07.2018 of the respondent No.2 by declaring the same illegal and opposed to law vide Annexure-G and etc.
These Writ Petitions coming on for Orders, this day, the Court made the following:
ORDER The petitioners have set up a welding shop and had applied for trade license which came to be issued at the first instance on 21.07.2005 permitting the petitioners to run the welding shop and a ‘No-Objection Certificate’ is also said to have been issued on the same day. It is stated that they had filed an application for renewal of the license on 10.07.2017 as the validity of the earlier trade license had expired. The petitioners had sought for a issuance of writ of certiorari to quash the order dated 09.07.2018 at Annexure-G wherein the license of the petitioners was cancelled in exercise of the powers under Section 70(2) of the Karnataka Grama Swaraj and Panchayat Act, 1993. During the pendency of these petitions, the petitioners had filed an application for amendment and had filed Annexure-F1 which is a notice dated 01.08.2018, Annxure-F2 which is a communication by the office of the Taluk Panchayath to the Panchayath Development Officer, Muthsandra Gram Panchayath, Hosakote Taluk and Annexure-F3 which is a resolution of the Gram Panchayath with a direction to take necessary steps to cancel the license.
2. The counsel for the respondent Nos.4 to 7 are the neighbours and persons residing in their vicinity and they have objected to the inaction of the respondent-authorities in taking action to prohibit the petitioners from carrying on the trade/business as the same was causing nuisance. The counsel for the respondents states that the licence had long expired in the year 2005 and hence, question of considering any application for renewal in 2017 did not arise as they could be no renewal which had already expired.
3. Various other contentions have also been raised including that the land in which the welding shop had been constructed had not been converted from agricultural to non-agricultural purpose.
4. The learned Additional Government Advocate appearing for the 1st and 8th respondents states that as per notice dated 01.08.2018 preliminary proceedings have been conducted and final notice has been issued to the petitioners giving them one week’s time to voluntarily stop carrying all activity. It is also stated that further proceedings are contemplated.
5. Insofar as the cancellation of license as per Annexure-G is concerned, counsel for the Gram Panchayath states that notice has not been issued prior to cancelling of the license.
6. The main grievance of the petitioners is that the opportunity of hearing is to be given before any final order is to be passed either as regards cancellation of license or as regards further proceedings is to be taken by the Thasildar pursuant to the notice at Annexure-F1.
7. Without entering into the merits of the case in view of the fact that the contentions raised would require adjudication of factual aspects, it would be appropriate if liberty is granted to the petitioners to appear before the Gram Panchayath as well as the Thasildar and put forth their case before further action is taken.
8. Insofar as Annexure-G is concerned, only on the ground that no notice has been issued to the petitioners to afford an opportunity of hearing, the order dated 09.07.2018 at Annexure-G is set aside with a direction that proceedings relating to the cancellation of license would be resumed and concluded only after a notice to the petitioners affording an opportunity of hearing, is issued. As such, an action of cancelling the license would affect the rights of the petitioners which mandates observance of principles of natural justice as may be appropriate.
9. Insofar as notice issued for illegal use of land, which is not converted as referred to in the notice at Annexure-F1, it is made clear that the Thasildar is at liberty to take further proceedings to conclude all the proceedings relating to carrying on all activities in agricultural property. However, an opportunity of personal hearing would be afforded to the petitioners before taking any further action.
10. Without entering into the merits of the contentions raised, it is kept open for the parties concerned to take appropriate action in expeditious manner especially in the light of the grievance placed before this Court by respondent Nos.4 to 7 who state that the continuance of activity by the petitioners is resulting in noise pollution and nuisance as regards the neighbours.
11. Accordingly, the order dated 09.07.2018 at Annexure-G is set aside with a direction that further proceedings relating to renewal or cancellation would be initiated and concluded only after affording an opportunity of hearing to the petitioners. Petitioners are directed to appear before the Panchayath Development Officer-3rd respondent on 22.02.2019 at 11.00 a.m. and put forth their case as regards the proposed action of cancellation of license.
12. Similarly, the petitioners are directed to appear before the 8th respondent on 18.02.2019 at 11.00 a.m. and put forth their case as regards the notice dated 01.08.2018.
13. It is made clear that all the contentions of the parties are kept open. Respondent Nos.4 to 7 are at liberty to file such other documents that would assist the Thasildar and Panchayath Development Officer to come to a correct conclusion. However, they will not be afforded an opportunity of hearing as the Thasildar and Panchayath Development Officer cannot convert the proceedings between the petitioners and concerned respondent into an adversarial process.
14. Subject to the above observations, petitions are disposed of. The consideration of proceedings by the Thasildar as well as Panchayath Development Officer to be completed within a period of four weeks.
In view of disposal of main petitions, I.A.Nos.1 and 3 of 2018 for vacating interim order require no further orders and disposed of accordingly.
Sd/- JUDGE Prs*