SRI. B R SRINIVAS MURTHY V. THE COMMISSIONER

WP/41604/2019

AI Insights

These writ petitions arise from the activities of the fourth respondent in writ petition No.41604/2019 and the petitioner in companion writ petition No.13045/2021, who allegedly runs a flour mill in a residential locality. Writ petition No.41604/2019 was filed by a neighbor seeking cancellation of the license granted to the fourth respondent to run the flour mill. Writ petition No.13045/2021 challenges a notice issued by the Bruhat Bengaluru Mahanagara Palike (BBMP) to show cause why the license should not be cancelled based on the neighbor's complaint. The court found that the Health Officer lacked jurisdiction to issue the notice, as the power to cancel the license lies with the Zonal Commissioner under the BBMP Act.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 726740 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 27-10-2021
• Assessment Year: misc
• Other Referred Cases: WHIRLPOOL CORPORATION Vs. REGISTRAR OF TRADE MARKS, MUMBAI & ORS., Calcutta Discount Co. Ltd. vs Income Tax Officer Companies Distt. I
• Laws Referred To: Constitution of India, Karnataka Municipal Corporation Act, 1976, Bruhat Bengaluru Mahanagara Palike Act, 2020
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: S N CHANDRA; AKSH T; M R SINCHANA
• Assessee Lawyers: C MUDDURAJ; GIRISHKUMAR R
• Keywords: Commissioner; Jurisdiction; License Cancellation; Writ petition; Flour Mill; Health Officer; Zonal Commissioner
• Section: 68; 226; 227; 307; 308

Judgement Text

"IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER, 2021 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.41604 OF 2019 (LB-BMP) C/W. WRIT PETITION No.13045 OF 2021 (LB-BMP) IN WRIT PETITION No.41604 OF 2019 BETWEEN SRI B.R.SRINIVAS MURTHY S/O RAMANNA, AGED ABOUT 60 YEARS, RESIDING AT NO.703, 7TH CROSS, BAGALGUNTE, NAGASANDRA, BENGALURU – 560 073. ... PETITIONER (BY SRI C.MUDDURAJ, ADVOCATE (PHYSICAL HEARING)) AND 1. THE COMMISSIONER BBMP, BENGALURU – 75. 2. THE ASST.EXECUTIVE ENGINEER N-9, EXECUTIVE AND SUB-DIVISION, SOLADEVANAHALLI, BENGALURU – 560 090. 2 3. THE HEALTH OFFICER DASARAHALLI DIVISION, BBMP, BENGALURU – 560 075. 4. MARIYAPPA S/O NANJAPPA, AGED ABOUT 69 YEARS, R/AT NO.691, 7TH CROSS, BAGALAGUNTE, NAGASANDRA, BENGALURU – 560 073. ... RESPONDENTS (BY SRI S.N.PRASHANTH CHANDRA, ADVOCATE FOR R1 TO R3 (VIDEO CONFERENCING); SRI AKSH V.T., ADVOCATE FOR R4 (PHYSICAL HEARING)) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-1 TO 3 TO TAKE IMMEDIATE ACTION FOR TERMINATING LICENCE IF ANY FOR STOP RUNNING THE FLOOR MILLS INSTALLED UNDER THE NAME AND STYLE \"SRI.MAHALAKSHMI FLOOR MILL\" HAVING 15 HM MOTORS AT 691, 7th CROSS, BAGALAGUNTE, NAGASANDRA POST, BANGALORE OWNED BY R-4. IN WRIT PETITION No.13045 OF 2021 BETWEEN SRI B.N.MARIYAPPA S/O NANJAPPA AGED ABOUT 70 YEARS NO 691, 7TH CROSS, BAGALAGUNTE, NAGASANDARA BENGALURU - 560 073. ... PETITIONER (BY SRI GIRISHKUMAR R., ADVOCATE (PHYSICAL HEARING)) 3 AND 1. THE BBMP COMMISSIONER 5TH FLOOR, LEGAL CELL N R SQUARE CORPORATION CIRCLE BENGALURU – 560 001. 2. MEDICAL OFFICER (HEALTH) DASRAHALLI ZONE, BBMP BAGALGUNTE, BENGALURU - 560 073. ... RESPONDENTS (BY SMT.SINCHANA, ADVOCATE (VIDEO CONFERENCING)) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECTING THE R1 TO CONSIDER THE REPRESENTATION DATED 06.07.2021 MADE TO THE R1-COMMISSIONER VIDE ANNX-A; QUASH THE NOTICE DATED 16.07.2021 ISSUED BY R2 VIDE ANNX-B AND ETC., THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING: ORDER These petitions arise out of a common activity of the fourth respondent in writ petition No.41604/2019 and the petitioner in companion writ petition No.13045/2021, allegedly running a flour mill in a residential locality. 2. Writ petition No.41604/2019 is filed by the neighbour, who stays adjacent to the house of the fourth respondent, who 4 runs a flour mill, seeking cancellation of the license granted to the fourth respondent to run such flour mill. Writ petition No.13045/2021 is filed challenging a notice issued by the Bruhat Bengaluru Mahanagara Palike (for short ‘the BBMP’) seeking to show cause as to why the license should not be cancelled in the light of the complaint being lodged by his neighbour. 3. Heard Sri C. Mudduraj, learned counsel appearing for the petitioner, Sri S.N.Prashanth, learned counsel appearing for respondent Nos.1 to 3, Sri Akash V.T., learned counsel appearing for respondent No.4 in writ petition No.41604/2019 and Sri Girish Kumar R., learned counsel appearing for the petitioner, Smt. M.R.Sinchana, learned counsel appearing for the respondents in writ petition No.41604/2019 and perused the material on record. 4. The owner of the flour mill - fourth respondent had approached this Court in writ petition No.2935/2021, on a twofold challenge. One for disconnection of power to the flour 5 mill by BESCOM and another, cancellation of the trade license. This Court by an order dated 25.02.2021, disposed the writ petition on the ground that the owner of the flour mill – the fourth respondent herein was not heard in the matter and the cancellation of the trade license would entail civil consequences. 5. Pursuant to the order passed by this Court on 25.02.2021, the Health Officer of the BBMP issues a notice to the fourth respondent to appear before him in justification of the continuance of license. This becomes the subject matter of the companion writ petition No.13045/2021. 6. The ground on which the writ petition No.13045/2021, is preferred is that, the Health Officer has no jurisdiction to grant or cancel the license as it is the duty of the Commissioner under the Karnataka Municipal Corporation Act, 1976 (hereinafter referred to as ‘the Act’ for short). On such ground, the petitioner seeks interference at the hands of this Court. The Apex Court and this Court in several writ petitions have dealt with the rudimentary principle of ‘he who decides, must hear’. 6 7. The decision had to be taken by the Commissioner under the Act and now under the Bruhat Bengaluru Mahanagara Palike Act, 2020 (hereinafter referred to as ‘the BBMP Act’ for short), cancellation of license is the power vested with the Zonal Commissioner in terms of Chapter XXII, under Sections 307 and 308 of the BBMP Act. 8. The Health Officer nowhere figures in the scheme of the statute to even issue a notice to the petitioner informing such cancellation. The Health Officer issues a notice on the strength of the Office Order issued by the Commissioner in terms of Section 68 of the Act, which empowers the Commissioner to delegate certain ordinary powers. The very Office Order is considered and identical submission is negatived by this Court in writ petition No.14459/2019, disposed on 28.07.2021. The case therein was the powers of the Commissioner being performed by the Head of the Legal Cell. In the case at hand, the power of the Commissioner is sought to be performed by the Health Officer, on the strength of delegation in terms of Office 7 Order, by taking recourse to Section 68 of the Act. Since the issue is already considered and dealt with by this Court (supra), the Court need not detain itself or delve upon the issue with regard to the competence. Therefore, the Zonal Commissioner will now issue a notice to the fourth respondent – owner of the flour mill, in furtherance of the order passed by this Court (supra), in terms of Section 307 of the BBMP Act. 9. The submission of Smt. M.R.Sinchana, learned counsel appearing for the Bruhat Bengaluru Mahanagara Palike is that, since it is a notice, the same submission could be made before the Health Officer, is unacceptable. If the order is without jurisdiction, there can be no question of proceedings before the very authority which lacks jurisdiction. A notice without jurisdiction becomes a nullity in the eye of law as held by the Apex Court in the case of WHIRLPOOL CORPORATION Vs. REGISTRAR OF TRADE MARKS, MUMBAI & ORS.1, wherein it has held as follows: 1 (1998) 8 SCC 1 8 \"19. Another Constitution Bench decision in Calcutta Discount Co. Ltd. vs Income Tax Officer Companies Distt. I AIR 1961 SC 372 laid down : \"Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment. the High Court will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against Income Tax Officer acting without jurisdiction under Section 34, Income Tax Act\". 20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is 9 shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation 21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the \"Tribunal\". Therefore, in the light of the facts obtaining in the case at hand and the judgments of the Apex Court and this Court (supra), writ petition No.13045/2021, deserves to succeed. 10. Learned counsel further submits that the petitioner in writ petition No.13045/2021, has knocked the doors of the civil Court (O.S.No.6618/2020), seeking an injunction against the BBMP and has also filed writ petition before this Court as well, exercising plural remedies. In response to this, learned counsel for the petitioner would submit that the matter pending before the civil Court would be withdrawn and his submission is placed on record. 10 11. For the aforesaid reasons, the following: ORDER i. Writ petition No.41604/2019 is disposed. ii. Writ petition No.13045/2021 is allowed. iii. The order dated 16.07.2021, impugned in writ petition No.13045/2021 stands quashed and the issue in writ petition No.13045/2021, is now relegated to the Zonal Commissioner under the BBMP Act, to issue notice to the petitioner and then pass appropriate orders in accordance with law. iv. The Zonal Commissioner of the BBMP shall issue notice to the petitioner, fixing the date of appearance and hearing the petitioner, within ten days from the date of receipt of a copy of this Order and the petitioner shall reply to the same, within the next ten days. v. The Zonal Commissioner shall comply with the aforesaid directions and pass appropriate orders, within six weeks thereafter. 11 vi. All contentions of both the parties in these writ petitions shall remain open. Sd/- JUDGE nvj CT:MJ "