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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MRS.JUSTICE M.G.UMA
W.A.No.3891/2019 (GM -RES)
BETWEEN:
Smt.R.Kalpana
W/o.V.Vasanth Kumar
Aged about 45 years
Residing at No.81, 4th Cross
Vittal Nagara,
Bangalore - 560 026. ... Appellant
(By Smt.Y.P.Vijaya Vasantha Kumari, Advocate)
AND:
1. Mr.Kishore Gowda
S/o.Venkatesh
Aged about 29 years
2. Mr.Nagaraj J.
S/o.Late Jayaram
Aged about 45 years
Respondent Nos.1 and 2 are
Residing at No.72, 5th Cross
Vittal Nagar West, Bangalore - 560 026.
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3. State of Karnataka
Represented by its Secretary
Urban Development Department
M.S.Building,
Bangalore - 560 001
4. The Commissioner of Police
No.1, Infantry Road
Bangalore - 560 001
5. Bangalore Electricity Supply
Company (BESCOM)
Represented by its Chief Engineer
Nrupathunga Road
Opposite to Reserve Bank of India
Bangalore - 560 001
6. The Health Officer
Office of Medical Officer of Health
Bruhat Bengaluru Mahanagara Palike
Chamarajapete Division
Chamarajapete
Bangalore - 560 018
7. Pollution Control Board
Represented by its Chairman
No.49, Parisara Bhavana
Church Street, M.G.Road
Bangalore - 560 001
8. Office of the Environmental Officer
Karnataka State Pollution Board
Bengaluru City South, 1st Floor
Nisarga Bhavan, 7th D Main
Thimmaiah Road, Shivajinagar
Bangalore-560 079.
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9. Office of the Assistant Executive
Engineer Electrical
(Commercial Operation and Maintenance)
W-6, Sub Division, BESCOM
B.R.Pura, Mysore Road
Bangalore - 560 026
10. Office of the Assistant
Executive Engineer
Chamarajapete Sub Division
BESCOM, No.47, 3rd Cross
4th Main, Chamarajapete
Bangalore - 560 018 ... Respondents
(By Sri.Siddharth Desai, Advocate for R1 & R2;
Smt.Vani H., AGA for R3 & R4;
Sri.B.N.Murthy, Advocate for R5 & R9;
Sri.Ashwin S.Halady, Advocate for R6;
R7, R8 & R10 are served.)
This appeal is filed under Section 4 of the
Karnataka High Court Act, 1961, praying to set aside the
order dated 18.09.2019 passed by the learned Single
Judge in W.P.Nos.15614-615/2019 (GM-RES) by
dismissing the said writ petition with costs.
This appeal coming on for preliminary hearing this
day, NAGARATHNA, J., delivered the following:
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JUDGMENT
Though this appeal is listed for preliminary hearing, with the consent of learned counsel on both sides, it is heard finally.
2. The appellant herein, who was respondent No.9 in W.P.Nos.15614-615/2019, has assailed the order of the learned Single Judge dated 18.09.2019 passed in the said writ petitions.
3. Briefly stated, the facts are, respondents 1 and 2 herein, who are the writ petitioners, sought a writ of mandamus against respondent No.4 in the writ petitions (respondent No.6 herein) namely the Health Officer of the Bruhath Bengaluru Mahanagara Palike (BBMP), Chamarajapet Division, Chamarajapet, Bengaluru, to take action pursuant to the communication dated 08.02.2018 (Annexure-G) to close down the Power Loom unit run by the appellant herein in residential premises No.81, 4th Cross, Vittalanagara, Bengaluru - 560 026. 5 By the impugned order, the learned Single Judge disposed of the writ petitions observing that the Power Loom unit is run by the appellant herein in a residential area without any licence and therefore, the BBMP to take immediate steps to seal the aforesaid Power Loom unit and to ensure that the appellant herein is not permitted to run the said Power Loom in contravention of law and to complete the exercise within a period of two weeks from the date of receipt of certified copy of that order. Also, liberty was also given to BBMP to take the assistance of the jurisdictional police to close down the Power Loom unit. Being aggrieved, respondent No.9 in the writ petition has preferred this writ appeal.
4. We have heard Smt.Y.P.Vijaya Vasantha Kumari, learned counsel for the appellant and Sri Siddharth Desai, learned counsel for respondents 1 and 2, Smt.Vani H., learned Additional Government Advocate for respondents 3 and 4 and perused the material on 6 record. Respondents 7, 8 and 10 are served and unrepresented.
5. Appellant's counsel made a two fold submission: firstly, she submitted that the appellant who was arrayed as respondent No.9 in the writ petitions but was not represented before the learned Single Judge. She did not participate in the writ proceedings and without any opportunity of hearing being given to her, the Power Loom unit which was being run by her, was ordered to be closed. She submitted that this is an instance of violation of principles of natural justice and hence, on that short ground alone, the impugned order may be set aside. Secondly, appellant's counsel submitted that the relief sought by respondents 1 and 2 herein/writ petitioners was in respect of Annexure-G - communication dated 08.02.2018 issued by the Karnataka State Pollution Control Board to Sri Vasantha Kumar and that no such communication is addressed to the appellant herein. However, on the basis of said 7 communication, respondents 1 and 2 herein sought for closure of Power Loom unit run by the appellant herein. She also submitted that it may be that the communication dated 08.02.2018 was addressed to the husband of appellant Sri Vasantha Kumar. However, on that basis the Power Loom unit run by the appellant herein could not have been ordered to be closed. She, therefore, submitted that the relief sought by respondents 1 and 2 herein was wholly misconceived as Annexure-G - communication is not addressed to the appellant herein. Therefore, on that score also, the impugned order may be set aside.
6. Per contra, learned counsel for respondents 1 and 2 supported the impugned order and contended that though appellant herein was aware of the writ petitions filed by respondents 1 and 2 herein, she chose not to participate in the writ proceedings and now she cannot contend that there is violation of principles of natural justice. He further submitted that sum and substance of 8 the case is that there is noise pollution caused on account of Power Loom unit being run by the appellant. Respondents 1 and 2 herein sought for implementation of the communication dated 08.02.2018 as the noise emitting from Power Loom unit is unbearable and therefore, learned Single Judge was justified in directing respondent No.6 herein to take action against the Power Loom unit.
7. Learned counsel for respondents 1 and 2 also submitted that appellant herein refused hand summons and therefore, paper publication was taken out by way of substituted service so as to serve the appellant herein and the appellant herein failed to appear before the learned Single Judge.
8. By way of reply, learned counsel for appellant reiterated her submissions and contended that when the Court notice was not served on her, the substituted service taken out was a futile exercise, as any adverse 9 order to be made by this Court ought to have been only after hearing the appellant herein and since the appellant did not have any opportunity of being heard, reliance placed by learned counsel for respondents 1 and 2 on newspaper publication being taken out is without any basis. She also submitted that licence of the Power Loom unit run by the appellant has been extended till 31.03.2021.
9. Having heard the learned counsel for respective parties, at the outset, we note that respondents 1 and 2 herein/writ petitioners had sought for implementation of direction issued by the Karnataka State Pollution Control Board in its communication dated 08.02.2018 by the Environment Officer, Bengaluru City South to Sri Vasantha Kumar but he was not made a party to the writ petition. That itself shows that no communication was issued to the appellant herein. It may be that the appellant is the wife of Sri Vasantha Kumar, but the fact remains that there was no such communication issued to 10 the appellant herein. Had such a communication been issued to the appellant herein, she may have taken steps to respond to the same and may have ensured to reply to the said communication of the Karnataka State Pollution Control Board. Be that as it may. Respondents 1 and 2 herein sought implementation of the communication dated 08.02.2018 (Annexure-G) as against the appellant herein who was arrayed as respondent No.9 in the writ petition. When Annexure-G
- communication was not issued to the appellant herein and was issued to Sri Vasantha Kumar, filing of writ petition and seeking a mandamus as against the appellant herein was itself erroneous.
10. That apart, it is evident that appellant herein did not participate in the writ proceedings, but an adverse order was has been made as against her for closure of her Power Loom unit, if necessary with the help of jurisdictional police. Therefore, we find that the order of 11 the learned Single Judge is in violation of principles of natural justice on both the counts.
10. In the circumstances, the impugned order is set aside. Appeal is allowed in the aforesaid terms.
In view of disposal of the appeal, interim order dated 23.10.2019 is recalled and I.A.2/2019 also stands disposed.
Sd/-
JUDGE Sd/-
JUDGE PKS