IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT APPEAL NO.2274/2019 (LB-BMP) BETWEEN SIPANI ENERGY LTD., TOTAL GAS AUTO LPG DISPENSING STATION # 36/10, T MARIYAPPA ROAD 100 FEET ROAD, 1ST BLOCK JAYANAGAR, BENGALURU-560011 REP BY ITS AUTHORISED SIGNATORY SHRI LAXMIKANTH …APPELLANT (BY SRI CHANDRAKANTH PATIL K, ADVOCATE) AND 1. THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE CORPORATION OFFICE, N R SQUARE BENGALURU-560002 2. MEDICAL OFFICER OF HEALTH CHICKPET RANGE, BBMP COMPLEX 1ST FLOOR, J C ROAD BENGALURU-560002 …RESPONDENTS (BY SRI K N PUTTEGOWDA, ADVOCATE FOR R-1 & 2) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961 PRAYING TO SET ASIDE THE ORDER DATED 27.05.2019 PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.45560/2018 SO FAR IN HOLDING THAT THE PETITIONER IS REQUIRED TO OBTAIN TRADE LICENSE FROM THE RESPONDENT AUTHORITIES AND HOLDING THAT THE RESPONDENT BBMP IS ENTITLED TO TAKE NOTE OF THE OBJECTION RAISED BY THE COMPLAINANT TRUST.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. Perused the order dated 6th September 2019. The said order rejects the contention of the appellant that a trade licence under Section 353 of the Karnataka Municipal Corporations Act, 1976 (for short ‘the said Act of 1976’) is not required for carrying on the business which is conducted by the appellant. Notice was issued confined only to the direction contained in paragraph 39 of the impugned order. In fact, the order dated 6th September 2019 clearly records the statement of the learned Senior Counsel appearing for the appellant that the appellant is accepting that a licence is required under the provisions of Section 353 of the said Act of 1976 to carry on the business conducted by it. Paragraph 39 of the impugned order reads thus:
“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.”
2. The first submission of the learned counsel appearing for the appellant is that the respondents are under the impression that by virtue of the direction contained in the impugned order, Sri Chapalamma and Sri Plegamma Temples Development Association Trust has a right of hearing while deciding the application made by the appellant (Annexure-G1) for grant of licence under Section 353 of the said Act of 1976. His second submission is that the said Temple Trust is illegally in possession of the temple. His third submission is that the respondents are getting influenced by the politicians and that is how the notice of demolition was issued by the respondents.
3. We have considered the submissions. It is not in dispute that the application made by the appellant for grant of licence in accordance with Section 353 of the said Act of 1976 is pending. Sub-section (5) of Section 353 reads thus:
“(5) The Commissioner may grant such licence subject to such restrictions and conditions as may be specified by him thereon or he may refuse to grant such licence if it is likely to cause nuisance in the neighbourhood.”
(underline supplied) 4. Thus, the law mandates that while considering the application for grant of licence, the Commissioner must examine whether grant of such licence is likely to cause nuisance in the neighbourhood. The learned counsel appearing for the appellant is right in submitting that any person who raises an objection for grant of licence under Section 353 has no right of hearing before the Commissioner. In fact, apart from the observations made in the impugned order, there is no direction in paragraph 39 to the respondents to give an opportunity of being heard to the complainant -Temple Trust. The direction is to take note of the objections raised by the Temple Trust. A copy of the said objections is at ink page No.227. Firstly, the complaint records that the consent of the complainant is required. Obviously, Section 353 does not contemplate the requirement of obtaining the consent of the neighbours or the persons staying in the neighbourhood. The second objection is that as Homa and Havanas are being conducted in the temple, if the gas bunk is opened, there may be chances of causing fire accidents. Obviously, the said objection raised by the Temple Trust cannot be treated as a gospel truth. However, the objection, in substance, is that if a licence is granted to the appellant, it may cause nuisance to the activities in the Temple as the possibility of causing fire accidents will increase. All that the learned Single Judge has directed is to consider what is stated in the complaint filed by the Temple Trust. As stated earlier, the complainant has no right of hearing at all. Nevertheless, considering the mandate of sub-section (5) of Section 353 of the said Act of 1976, any such objection raised expressing an apprehension of causing nuisance will have to be taken into consideration by the Commissioner while considering the application under Section 353. We are sure that considering the scope of the powers under Section 353, neither any political influence nor any political interference has any role to play when it comes to exercise of the powers to grant licence under Section 353. As stated earlier, the statement made in the objections raised by the complainant -Temple Trust cannot be treated as a gospel truth. Nevertheless, the Commissioner will have to consider the objections in the context of his obligation under sub-section (5) of Section 353. Even under Section 358 of the said Act of 1976, after grant of licence, the aspect of nuisance can be considered by the Commissioner.
5. Subject to what is observed above and subject to what is clarified above, we find no merit in the challenge to the direction contained in paragraph 39 of the impugned order and therefore, for the reasons recorded in this order as well as the reasons recorded in the order dated 6th September 2019, the appeal is dismissed.
6. The learned counsel appearing for the appellant seeks continuation of the interim order which is continued in the order dated 6th September 2019.
7. We have considered the said prayer. The order dated 6th September 2019 records the statement of the learned Senior Counsel appearing for the appellant that the appellant is accepting that a licence is required under the provisions of Section 353 of the said Act of 1976. If the interim order is continued, it will permit the appellant to carry on the business which cannot be carried on unless there is a licence under Section 353 of the said Act of 1976. Therefore, the prayer for continuation of the interim relief is rejected.
8. We, however, direct the respondents to decide the pending application (Annexure-G1) as expeditiously as possible and in any event, within a period of two weeks from today.
The pending interlocutory application does not survive and is accordingly disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE bkv