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2020 Supreme(Kar) 172
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
S. Sunil Dutt Yadav, J.
Sipani energy Ltd., Total Gas Auto LPG Dispensing Station - Petitioner
Versus
The Commissioner, Bruhat Bangalore Mahanagara Palike, Corporate Office & Ors. - Respondents
Writ Petition No.50961 of 2019 (LBBMP)
Decided On : 12-02-2020
For the Petitioner:Sri. G. Krishnamurthy, Senior Advocate for Ms. Aparna, Advocate
For the Respondent:Sri K.N. Puttegowda, Advocate
Headnote:
Karnataka Municipal Corporation Act, 1976 - Section 353 - Companies Act - Explosives Act, 1884 - Section 6C (1) (c) - Pressure Vessels Rules, 1981 - Constitution of India, 1950 - Article 19 (1) (g) - Application for trade license - Reasonable restriction - Exclusion of writ jurisdiction - Whether in present case exercise of right to trade by petitioner has caused public nuisance is matter in question - Whether surroundings in vicinity of which outlet is opened would require a different standard to be applied is to be looked into - Whether anything is a nuisance or not is a question to be determined not merely by an abstract consideration of thing itself but with reference to its circumstances and where a locality is used for purpose of carrying on a trade or manufacture fact that such trade or manufacture does exist elsewhere not far from place cannot be left out of account - Whether setting up of Auto LPG Station in midst of area where there is stated to be school hospital and temple in vicinity would amount to likelihood of causing nuisance - Whether power under Section 353 (5) of KMC Act is being exercised within legal limits of law would require keeping in mind that power of refusal to grant license under Section 353 (5) of KMC Act on ground of likelihood to cause nuisance ought to be traced and appropriately construed so as to fall within restriction as envisaged under Article 19 (6) of Constitution of India - Petitioner submits that property where retail outlet is sought to be established has been obtained on lease from owner and that necessary permit from requisite department including Chief Controller of Explosives Petroleum and Explosives Safety Organization has been obtained - Petitioner states that on a previous occasion question of requirement of trade license was an issue before this court - It was contended that petitioner did not require trade license - Said aspect of matter was considered in detail by this court and by order this court has disposed off writ petition by holding that petitioner was required to obtain trade license - It was further directed that respondent-BBMP was to consider application for trade license filed by petitioner in accordance with law and while doing so respondent-BBMP was required to take note of objections raised by Temple Trust which had objected for grant of trade license - Said order was taken up in appeal which was disposed off as per order – Held, Apprehension of likelihood of fire accident has already been taken note of by certificates granted by Fire Department - Insofar as other inconveniences that are made out no doubt there are inconveniences to neighborhood but that by itself cannot be construed as amounting to nuisance in light of discussion supra and be a ground to reject grant of trade license - It is also to be noted that petrol bunk has been functioning during pendency of writ petition and has continued - Necessary permission by Fire Department has been granted during pendency of present proceedings and there has not been any instance of any accident - Inconvenience as a result of functioning of 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 - Impugned order passed by respondent-BBMP by way of enquiry report cannot be stated to be backed by scientific material pointing to likelihood of nuisance - In light of nature of right being exercised under Article 19 (1) (g) of Constitution of India, restriction also needs to be construed in an appropriate manner - Finding of likelihood of nuisance is not a legally tenable finding - Authority while exercising power of licensing should lean towards permitting the activity with additional conditions so as to take note of 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 case herein - Learned counsel appearing for respondent – BBMP has relied on judgment of supra wherein High Court has relegated party to alternative remedy of civil suit before competent Civil Court by holding it to be an efficacious remedy - On other hand learned counsel for petitioner has relied on judgment in case to contend that rule of exclusion of writ jurisdiction by availability of an alternate remedy is a rule of discretion and not one of compulsion - Apex court in above judgment has appropriately laid down law in this regard as follows In an appropriate case in spite of availability of alternate remedy High Court may still exercise its writ jurisdiction in at least three contingencies - Where writ petition seeks enforcement of any of fundamental rights - Where there is a failure of principles of natural justice - Where order or proceedings are wholly without jurisdiction and or vires of an Act is challenges - Said position of law is a settled position of law and in present case circumstance is applicable in light of petitioner seeking to enforce fundamental right under Article 19 (1) (g) of Constitution of India - This exercise is more suitable to be undertaken by this court while simultaneously exercising power of judicial review as regards impugned order and is too important a matter left to be decided by Standing Committee of respondent-BBMP itself – Hence contention raised by respondent is liable to be rejected - Taking note of above discussion and impugned order it would be a fit case to set aside impugned order with a direction to respondent-BBMP to reconsider application and pass necessary orders in light of discussion as made above as per procedure - In light of prolonged litigation respondent-BBMP is to take action expeditiously not later than two weeks from date of release of order which is same period as granted by Division Bench while allowing appeal - It would not be out of place to observe that petitioner’s litigation journey is nearing its desired destination - Taking note of repeated though amorphous allegation of malafide by petitioner this Court expects that direction of this Court will be adhered to in letter and spirit without penalizing petitioner for having sought for redressed by Court intervention and without raking up any settled and buried issue that has been previously adjudicated upon - Petition is allowed
ORDER :
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 non-conventional 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
