Karnataka High Court
Dr G.Latha vs The Commissioner on 8 December, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2023:KHC:44572
WP No. 19799 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.19799 OF 2023 (LB-BMP)
BETWEEN:
DR. G. LATHA,
D/O. M. GURUSHANTHAPPA,
AGED ABOUT 33 YEARS,
R/AT. NO. 236/A, 11TH MAIN,
40TH CROSS, 2ND BLOCK,
RAJAJINAGAR,
BANGALORE - 10
...PETITIONER
(BY SRI. MADHUSUDHAN M. N., ADVOCATE)
AND:
1. THE COMMISSIONER,
BRUHATH BANGALORE MAHANAGARA PALIKE,
Digitally signed N. R. SQUARE,
by
NARAYANAPPA BANGALORE - 560 001.
LAKSHMAMMA
Location: HIGH
COURT OF 2. THE MEDICAL OFFICER FOR HEALTH,
KARNATAKA RAJAJINAGAR SUB DIVISION,
BANGALORE CITY CORPORATION,
BANGALORE - 560 010.
...RESPONDENTS
(BY SRI. NEGLUR ARAVIND., ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO A) QUASH THE
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NC: 2023:KHC:44572
WP No. 19799 of 2023
IMPUGNED NOTICE NO. AA.Y. (RA.NA)P.R/85/2023-24 DATED
03/08/2023 ISSUED BY THE R2 AS PER ANNEXURE-E AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
a) Issue a writ of certiorari there by quash the impugned notice No.Aa.Y.(Ra.Na)/P.R/85/2023-24 dated 3/08/2023 issued by the second respondent as per Annexure - E.
b) Issue a writ of mandamus directing the 2nd respondent not to insist the petitioner to close down the clinic and the same is not affecting to any persons including the adjoining neighbors and consequently permit her to run the smooth running of dental clinic from the hands of this Hon'ble Court.
c) Pass such other writ/s or order/s, directions which are deemed to be fit on the facts and circumstances of the above case, in the interest of justice and equity.
2. The petitioner claims to be a dentist by profession and running her dental clinic under the name and style of Deekshitha Dental Clinic in the property owned by her after obtaining necessary trade licence. On 30.07.2020, the respondent-Corporation officials visited the property of the petitioner and informed -3- NC: 2023:KHC:44572 WP No. 19799 of 2023 the petitioner that no specific business can be carried out in the said premises in view of the fact that the road width is less than 40 feet as required under the zonal regulations and as such, called upon the petitioner by notice dated 03.08.2023 to close the said dental clinic. Being aggrieved by the same, the petitioner is before this Court.
3. The contention of the learned counsel for the petitioner is that:
3.1. The respondent-Health Department issued a trade licence on 20.04.2016. The petitioner has followed the applicable law, obtained the trade licence and thereafter commenced the dental clinic. It is not that the petitioner has commenced the business of a dental clinic without obtaining permission.
3.2. The petitioner having acted in terms of the said trade licence and having invested money for setting up the clinic, is now made to suffer on -4- NC: 2023:KHC:44572 WP No. 19799 of 2023 account of the actions taken by the respondent-
Corporation.
4. Sri Neglur Aravind, learned counsel appearing for respondents/Corporation however submits that:
4.1. Regardless of the trade licence, the zonal regulations not permitting the usage of the property of the petitioner for non-residential use, the impugned notice has been issued.
5. Heard Sri Madhusudhan M.N., learned counsel for the petitioner and Sri Neglur Aravind, learned counsel appearing for respondents and perused the papers.
6. The points that would arise for my consideration are:
1. Whether, despite the issuance of trade licence, the respondents-Corporation can contend that on account of a violation of zonal regulations, the petitioner would be required to close the dental clinic?
2. Whether in the present case, the zonal regulations permit the petitioner to run a dental clinic in her property?
3. What order?-5-
NC: 2023:KHC:44572 WP No. 19799 of 2023
7. Answer to point No.1: Whether, despite the issuance of trade licence, the respondents- Corporation can contend that on account of a violation of zonal regulations, the petitioner would be required to close the dental clinic? 7.1. The petitioner having obtained a trade licence on 20.04.2016 has commenced the business of a dental clinic, which is not in dispute. Learned counsel for the respondent has no answer as to why and on what basis the trade licence has been issued. Insofar as the petitioner is concerned, no fault can be found, the petitioner has complied with the applicable rules applied for the trade licence and only thereafter started a business of a dental clinic. 7.2. However, the zonal regulations would override the administrative actions on the part of the officers of the respondents-Corporation. As such, the petitioner in my considered opinion, cannot claim the benefit of a trade licence to continue the said business on account of a -6- NC: 2023:KHC:44572 WP No. 19799 of 2023 wrongful act committed by the officers of the respondents-Corporation.
7.3. It is rather shocking that the Health Department of the Corporation has issued a trade licence without verification of the road width and whether the petitioner can conduct the specific business or carry on the specific trade in the property as detailed in the said trade licence. It was but required for the officers of the Corporation to have inspected the property, verified the road width, ascertained if such business can be carried on in the said property as per the zonal regulations and other applicable laws, and only thereafter issue a trade licence. The same has not been done and it is apparently a dereliction of duty on the part of the person, who has issued the said trade licence.
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NC: 2023:KHC:44572 WP No. 19799 of 2023 7.4. The Chief Commissioner is directed to take necessary action against the persons, who have issued the trade license, which has resulted in the present unfortunate situation, the petitioner being required to be shifted from premises after having invested huge amounts for setting up a dental clinic.
7.5. In that view of the matter, I answer point No.1 by holding that despite the issuance of trade licence, if there is a violation of zonal regulations, the corporation would be entitled to call upon the petitioner and the petitioner would be required to close the dental clinic.
8. Answer to point No.2: Whether in the present case, the zonal regulations permit the petitioner to run a dental clinic in her property? 8.1. As per the zonal regulations amended on 11.12.2014 in terms of regulations 4.1.2, the permissible land uses in Ring II of residential area is R and T1 and ancillary land uses C2, I-2 -8- NC: 2023:KHC:44572 WP No. 19799 of 2023 and U3. The ancillary use is permitted upto 20% of the total built up area or 50 sqm only in plots abutting roads having width of 12 mtrs or more i.e. 30 feet or more. If the plots are abutted by a road less than 30 feet then ancillary use is not permitted.
8.2. The respondents-Corporation being directed to produce the road register, a memo has been filed today i.e. 08.12.2023 enclosing a report indicating that the road register does not contain the width of the road. As such, a physical measurement has been done when it is found that the road width on 40th cross road is 23 feet and on 11th main road is 24 feet. Thus, the measurement on which the property of the petitioner is situated being less than 30 feet, no ancillary use of the property of the petitioner can be made.
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NC: 2023:KHC:44572 WP No. 19799 of 2023 8.3. In that view of the matter, I answer point No.2 by holding that the zonal regulations will override any trade licence which has been issued by the officers of the Corporation. Due to the zonal regulation mandating a minimum requirement of 30 feet wide road, the petitioner cannot use her property for running a dental clinic.
9. Answer to point No.3: What order?
9.1. The two aspects which emerge from the present matter requiring certain directions are that the road register which has been produced does not contain the width of the road. It would therefore be required for the Chief Commissioner to look into this and direct the updation of the road register with the width of the road as well as upload the road register containing details of all roads coming within his
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NC: 2023:KHC:44572 WP No. 19799 of 2023 jurisdiction on the website of BBMP for public consumption.
9.2. The second aspect that arises in the present matter is that the Health Officer has issued a trade licence without verifying any documents and the eligibility of the petitioner to run the dental clinic in her property. If at all the Health Officer had verified these aspects the present unfortunate situation would not have arisen. As such, the Chief Commissioner is directed to instruct all the concerned while issuing the trade licence to verify whether the particular property can be used for conducting that particular trade as regards which a trade licence is applied for and the details thereof to be captured in the trade licence, if issued. if necessary, appropriate changes in the form of the trade licence to be made so as to provide for these additional fields/columns/rows.
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NC: 2023:KHC:44572 WP No. 19799 of 2023
10. In that view of the matter, I pass the following:
ORDER
(i) The writ petition is dismissed.
(ii) Taking into consideration that it is after obtaining the trade licence that the petitioner started business. Six months time is granted to the petitioner to make necessary arrangements to shift the dental clinic.
(iii) It is needless to say that until then no coercive steps can be taken by the Corporation against the petitioner.
(iv) If at the end of six months the Petitioner has not closed the dental clinic, the corporation would be entitled to close the same after issuing a reasonable notice.
(v) Though the above petition is disposed of to file a compliance report, re-list on 24.01.2024 at 2.30 p.m. Sd/-
JUDGE KTY List No.: 1 Sl No.: 17