Karnataka High Court
Ms. Ameeta Patel vs The Corporation Of The City Of Bangalore ... on 22 January, 1999
Equivalent citations: AIR1999KANT441, ILR1999KAR1219, 1999(3)KARLJ167, AIR 1999 KARNATAKA 441, 1999 (2) KANTLD 37, (1999) ILR (KANT) 1219, (1999) 3 KANT LJ 167
ORDER
1. The petitioner in this petition has prayed for a direction, directing the respondents to restore the building to its original condition by effecting structural construction of shop bearing Nos. 9, 15 and 16 formed at basement of the building situate at No. 14, St. Marks Road, Bangalore and in the alternative has sought for a direction to pay money in the form of damages on the ground of deprivation of the petitioner's livelihood, estimating at Rs. 30,00,000/- and for other reliefs.
2. The petitioner after obtaining necessary licence from the 1st respondent-Corporation established a restaurant in shop bearing Nos. 9, 15 and 16 formed at basement of the building situated at No. 14, St. Marks Road, Bangalore after taking the said property on lease from the original owner. It is stated in the writ petition that the petitioner has invested about Rs. 20,00,000/- for her restaurant business in the above said premises. The particulars of the investment are also furnished in the petition. The case of the petitioner is that on 8-7-1995 at 8 a.m. along with 60 men with hammers in their hands led by a Corporator, with police protection rushed into the restaurant, pushed the staff of the petitioner injuring them, started breaking down the exterior and interior of the restaurant. It is further stated that all the paintings on the walls of the restaurant smashed, all tables and chairs damaged, all counters, basins, bathrooms fixtures broken, equipments damaged, and electrical wiring pull down. The records and documents which were in the office table of the petitioner were pulled and scattered and thrown out into the street; . . . crockery, cutlery were broken indiscriminately. The food stock and food in the restaurant worth several thousands of rupees were destroyed. This action on the part of the 1st respondent according to the petitioner is illegal and therefore she prayed for restoration of the premises to its original condition and in the alternative for damages estimating at Rs. 30 lakhs.
3. The 1st respondent-Corporation in its statement of objections denied the claim of the petitioner stating that the petitioner was illegally doing the business contrary to the provisions of the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as 'the Act') and the bye-laws and it is further submitted that the Corporation has passed an order under Section 321 of the Act, and the same was allowed to be final and therefore the petitioner is not entitled for any relief as prayed for in the writ petition.
4. Sri R.N. Narasimha Murthy, learned Senior Counsel for the petitioner contended that Section 321 of the Act, has no application to the facts of the case, since it is not the case of the Corporation that the building has been constructed contrary to the approved plan and therefore the Corporation was not right in removing and destroying the articles kept in the restaurant. The learned Counsel further submitted that the petitioner having established her business after obtaining necessary licence from the Corporation, it has no authority whatsoever to trespass into the premises and thereby destroy the articles kept in the restaurant which according to him is opposed to the fundamental right of the petitioner guaranteed under Article 19(1)(g) of the Constitution and also results in deprivation of her right to live guaranteed under Article 21 of the Constitution.
5. In reply to this submission Sri Ashok Haranhalli, learned Counsel for the Corporation submitted that in order to run the business, the petitioner had made certain construction in the basement floor and the said construction being unauthorised and contrary to the approved plan the Corporation is justified in passing the order under Section 321 of the Act, and he further submitted that the petitioner has no right to carry on the business in a basement floor contrary to the provisions of the Act and the bye-laws of the Corporation and therefore the petitioner is not entitled to urge that the fundamental right guaranteed under Article 19(1)(g) of the Constitution has been violated; further the action taken by the Corporation preventing the petitioner from carrying on the trade or business illegally does not in any way amounts to deprivation of her right to life or livelihood guaranteed under Article 21 of the Constitution. It is further submitted that in the absence of any violation of fundamental right the petitioner is not entitled for any damages as prayed for in the writ petition. It is the further case of the Corporation that even assuming that there is any injury or damage caused to her and to her properties, the appropriate remedy for the petitioner is to approach the Civil Court for damages since no damages can be awarded without there being an investigation in a regularly constituted suit that too when the facts are so disputed.
6. In order to appreciate the rival contentions raised by the parties it is useful to refer to some of the provisions of the Act. Section 321 of the Act reads as follows:
"321. Demolition or alteration of buildings or well work unlawfully commenced, carried on or completed.-- (1) If the Commissioner is satisfied.--
(i) that the construction or reconstruction of any building or hut or well--
(a) has been commenced without obtaining his permission or where an appeal or reference has been made to the standing committee, in contravention of any order passed by the standing committee; or
(b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based; or
(c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act, or such rules or bye-laws; or
(ii) that any alteration required by any notice issued under Section 308, have not been duly made; or
(iii) that any alteration of or addition to any building or hut or any other work made o; done for any purpose into, or upon any building or hut, has been commenced or is being carried on or has been completed in breach of Section 320, he may make a provisional order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Commissioner, has been unlawfully executed, or make such alterations as may, in the opinion of the Commissioner, be necessary to bring the work into conformity with the Act, rules, bye-laws, directions or requisitions as aforesaid, or with the plans or particulars on which such permission or orders was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well or hut.
(2) The Commissioner shall serve a copy of the provisional order made under sub-section (1) on the owner or builder of the building or hut or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed.
(3) If the owner or builder fails to show cause to the satisfaction of the Commissioner, the Commissioner may confirm the order, with any modification he may think fit and such order shall then be binding on the owner.
(4) If the construction or reconstruction of any building or hut is commenced contrary to the provisions of Section 300 or 314 and the Commissioner is of the opinion that immediate action should be taken then, notwithstanding anything contained in this Act, a notice to be given under sub-section (2) shall not be of less duration than twenty-four hours and shall be deemed to be duly served if it is affixed in some conspicuous part of the building or hut to which the notice relates and published by proclamation at or near such building or hut accompanied by beat of drum, and upon such affixation and publication, all persons concerned shall be deemed, to have been duly informed of the matters stated therein".
From a reading of the above said section, it is clear that if the Commissioner is satisfied that the construction or reconstruction of any building has been commenced without his permission, or has been completed otherwise than in accordance with the plan or has been constructed in breach of the plan, rule or bye-law may pass the provisional order requiring the owner of the building to demolish the work done. Thereafter, if the owner or the builder fails to show cause to the satisfaction of the Commissioner, the Commissioner may confirm the provisional order with any modification he may think fit and such order shall be binding on the owner.
7. The petitioner has produced the copy of the order passed under Section 321 of the Act. The reason given in the said order is that the owner has converted the basement floor for other uses. This reason in my opinion is not a reason for which an order could be passed under Section 321 of the Act. From the statement of objections filed by the respondent-Corporation I find that it is not the case of the Corporation that the building in question is in any way constructed contrary to the approved plan. If that is so, the order passed by the Corporation under Section 321 of the Act relating to the use of the premises is without authority of law. If the owner of the building uses premises for any purpose other than the purpose for which it has been earmarked, no doubt the Corporation has the power to prevent such user by invoking relevant provisions of the Act, but not under Section 321 of the Act. In the case on hand, the Corporation was not right in trespassing into the premises of the petitioner and thereby removing the articles in the said premises by virtue of the order passed undpr Section 321 of the Act.
8. Now the question that arises for consideration is:
"Is the petitioner entitled for direction to the respondent-Corporation to restore the premises to its original condition or in the alternative for damages?"
9. Section 343 of the Act, reads as follows:
"Prohibition in respect of lodging houses.--(1) No person shall, without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, keep any lodging house, eating house, tea shop, coffee house, cafe, restaurant, refreshment room or any place, where the public are admitted for repose or for the consumption of any food or drink or any place where food is sold or prepared for sale''.
Section 423 of the Act, confers power on the Corporation to make bye-laws. Section 423(10) reads as follows:
"423. Power to make bye-laws.--Subject to the provisions of this Act, the rules and regulations, the Corporation may make bye-laws.--
(10) for the regulation and licensing of hotels, lodging houses, boarding houses, choultries, rest houses, restaurants, eating houses, cafes, refreshment rooms, coffee houses and any premises to which the public are admitted for repose or for consumption of any food or drink or any place where any food or drink is exposed for sale;"
By virtue of power conferred on the Corporation under Section 423(10) of the Act, the Corporation after obtaining sanction as required under Section 425 of the Act, has framed. Bye-law 35 and the same was published by Notification No. A. 1(18) of 1952-53. dated 15-2-1954. As per this bye-taw no place within the limits of the City of Bangalore shall be used as Hotel, Boarding Houses, Rest Houses, Restaurants, Eating Houses, Cafes, Refreshment Rooms, Coffee Houses and any premises to which the public are admitted for the consumption of any food or drink in the City of Bangalore, without obtaining a licence from the Commissioner. Under this bye-law the person who intends to start any business has to fulfil certain conditions such as providing sufficient latrine, accommodation, suitable means of ventilating and lighting and set apart place for manufacture or preparation of food, suitable smoke outlets and shall cause the same to be maintained in good order. Under Bye-law 35(47), the Commissioner may suspend or completely revoke any licence granted in respect of any place on grounds of public health or safety or where any of the conditions specified in the bye-laws are not being strictly observed.
10. Bye-law 21 of the Corporation of the City of Bangalore Building Bye-laws, 1983 deals with basement floor. Under Bye-law 21(c) the basement floor shall not be used for residential or classrooms, kitchen, bath and lavatory. There cannot be any restaurant without there being a kitchen, bath and lavatory, because the bye-law providing for hotel and restaurant, specifically imposes certain conditions regarding maintenance of kitchen, bath and lavatory. Section 343 of the Act, prohibits running of a hotel, or a restaurant without a licence granted by the Commissioner. Building Bye-law 21(c) prohibits use of the basement floor for running of a restaurant. Therefore, the petitioner is not entitled to use the basement floor for the purpose of running a restaurant. Even though there was a licence granted by the Corporation permitting the petitioner to run the restaurant, the unlawful act will not become a lawful act only because she had licence. Hence. I hold that the petitioner is not entitled to seek for restoration of the premises to its original condition for the purpose of running the restaurant.
11. The next question that arises for consideration is.--
"Whether the action taken by the respondent-Corporation in preventing her from carrying on the business results in interfering with the right guaranteed to her under Article 19(1)(g) and Article 21 of the Constitution of India?"
Article 19(1)(g) of the Constitution provides that all citizens shall have the right to carry on any profession or to carry on any occupation, trade or business. This right is subject to the reasonable restriction under Article 19(6) of the Constitution. The right to run the restaurant by the petitioner is subject to the restriction imposed under the Act and the bye-laws framed by the Corporation. In view of the provisions referred to above, the petitioner has no absolute right to carry on the business without obtaining necessary licence as required under Section 343 of the Act, read with the bye-laws. The building bye-laws specifically prohibits the basement floor being used for running a restaurant. Under these circumstances, the petitioner has no fundamental right to carry on the business in the basement floor under Article 19(1)(g) of the Constitution.
12. It is in the submission of the learned Counsel for the petitioner, that the petitioner is deprived of her right to carry on the business which according to him amounts to deprivation of her right to livelihood or right to life guaranteed under Article 21 of the Constitution. The petitioner no doubt is entitled to do any business of her choice provided it is permitted by law. In the case on hand the petitioner is not permitted to use the basement floor for her business or trade since there is a specific bar under the bye-law referred to above. Therefore, it cannot be said that the action on the part of the Corporation in preventing her from running the business resulted in depriving the petitioner's right to livelihood. Hence, the petitioner cannot complain of any infringement of right guaranteed to her under Article 21 of the Constitution.
13. It is nextly contended by Sri R.N. Narasimha Murthy, learned Senior Counsel that the petitioner is entitled for damages for the injury or damage suffered by her since she was lawfully running the business under a licence granted by the Corporation. The fact that the petitioner was running the restaurant after obtaining the licence is not disputed. If that is so, is the Corporation justified in causing any injury or damage without revoking the licence granted in her favour?
14. Sri Ashok Haranhalli, learned Counsel for the Corporation submitted that even assuming that there is any injury caused to the petitioner the appropriate remedy for her is to approach the Civil Court for damages. Sri R.M. Narasimha Murthy, learned Senior Counsel relied upon the following decisions; in support of his contention:
(1) Smt. Nilabati Behera alias Lalita Behera v State of Orissa and Others,
(2) Consumer Education and Research Centre and Others v Union of India and Others; and
(3) O.K. Basu v State of West Bengal.
15. No doubt the Supreme Court has awarded damages in extreme cases of denial of liberty to a citizen. In the case on hand I have held that the petitioner has not established any interference with her right guaranteed under Articles 19(1)(g) and 21 of the Constitution of India. But at the same time, the action taken by the Corporation cannot be approved in view of the fact that the Corporation has trespassed into the premises of the petitioner and thereby caused damage to the properties without revoking the licence granted to her. The Supreme Court in the case of M/s. Fedco (Private) Limited and Another v S.N. Bilgrami and Others, has held that the authority is bound to follow the principles of natural justice in cancelling the licence.
16. Bye-law 35(42) of the Corporation of the City of Bangalore, which provides for grant of licence in respect of hotels and restaurants, provides that suspension or revocation of license shall be made only after an opportunity is given to the licensee to show cause in the matter. In the case on hand there is no revocation of licence by the Corporation. If that is so, during the subsistence of licence the Corporation was not right in trespassing into the premises of the petitioner and thereby causing damage to the property belonging to the petitioner. If really an opportunity had been afforded to the petitioner, in all probability the petitioner would have discontinued her business immediately after the revocation of licence. Since the Corporation has not followed the principles of natural justice, the petitioner is entitled for damages to the extent of the damage caused to her person and property.
17. Sri Ashok Haranhalli, learned Counsel for the Corporation submitted that in the absence of any evidence regarding injury or damage caused to the petitioner, it is not appropriate for this Court to award any damages in her favour. It is further contended that in view of the disputed facts, it is not appropriate for this Court to assess any damages. It is true that the quantification of damages is bound to be arbitrary in the absence of any evidence on the facts pleaded by the parties. Under these circumstances, the more appropriate remedy for the petitioner insofar as damage suffered by the petitioner is concerned, is to approach the Civil Court for appropriate relief of compensation.
18. Sri Ashok Haranhalli, learned Counsel further submitted that the action taken by the officers of the Corporation cannot be questioned in view of Section 485 of the Act which reads as follows:
"485. Indemnity to Government, municipal authorities, officers and servants.--No suit, prosecution or other legal proceedings shall lie against the Government or any municipal authority, officer, or servant or any person acting under the direction of the Government or any municipal authority, officer or servant, in respect of anything in good faith done or intended to be done under this Act, or any rule, bye-Jaw, regulation or order made under it".
Under the above said section, no immunity can be claimed by the Municipal Corporation in the absence of establishing that the action taken by the Corporation is in good faith. The Corporation has granted licence in favour of the petitioner and permitted her to run the restaurant. When such being the case, any action taken by the Corporation which resulted in causing damage to the property of the petitioner without revoking the licence cannot be said to be an act done in good faith. Therefore, there is no substance in the contention of the learned Counsel for the Corporation.
19. For the reasons stated above, writ petition is dismissed. Rule issued is discharged.
20. However, liberty is reserved to the petitioner to work out her rights in the Civil Court as observed above.