Smt R Kalpana vs Mr Kishore Gowda
2021 Latest Caselaw 117 Kant

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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.
                                     3




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.

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

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

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

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

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

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

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