Karnataka High Court
M/S Sri. Durgaparameshwari ... vs The Commissioner Of Police on 2 July, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION No.25539/2018 (GM-POLICE)
C/w W.P. Nos.26396/2018, 26542/2018
IN W.P.No.25539/2018:
BETWEEN:
M/s Sri Durgaparameshwari Enterprises,
(A Partnership Firm)
Having its place of business at:
M/s Costa Rica Bar and Restaurant,
At No.14, 3rd Cross,
2nd Main Road, K.G. Road,
Bengaluru - 560 019.
Represented by its Partner:
Mr.C.M.Vittal Gowda ...Petitioner
(By Sri. Bharath Kumar. V, Advocate)
AND:
1. The Commissioner of Police,
Bengaluru City,
Infantry Road,
Bengaluru - 560 001.
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2. Station House Officer,
Kalasipalya Police Station,
No.83, Fort F Street,
Kalasipalya,
Bengaluru - 560 002. ...Respondents
(By Sri. Ponnanna, AAG a/w
Sri. Vijay Kumar. A. Patil, AGA)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India, praying to quash the order
dated 11.06.2018 passed by the respondent No.1 (vide
Annexure - A) and to direct the respondent No.1 not to
insist upon the Occupancy Certificate prior to issuance of
the Licence as Contemplated under Section 3 of The
Licensing and Controlling of Places of Public Entertainment
(Bangalore City) Order, 2005 (Annexure - F) and etc.
IN W.P.No.26396/2018:
BETWEEN:
Sri. P.R. Narendra Babu,
Proprietor,
M/s Lover's Night Pub,
Bar and Restaurant,
Having its place of business at
No.3/20, 1st Floor,
Narasimharaja Road, Town Hall,
Bengaluru - 560 002. ...Petitioner
(By Sri. Bharath Kumar. V, Advocate)
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AND:
1. The Commissioner of Police,
Bengaluru City,
Infantry Road,
Bengaluru - 560 001.
2. Station House Officer,
S.J. Park Police Station,
No.391, Kumbaragundi Road,
Behind Shiva Talkies,
Kalasipalyam New Extension,
Kalasipalayam,
Bengaluru - 560 002. ...Respondents
(By Sri. Ponnanna, AAG a/w
Sri. Vijay Kumar. A. Patil, AGA)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India, praying to quash the order
dated 08.06.2018 passed by the respondent No.1 (vide
Annexure-A) and to direct the respondent No.1 not to insist
upon the Occupancy Certificate prior to issuance of the
Licence as Contemplated under Section 3 of The Licensing
and Controlling of Places of Public Entertainment
(Bangalore City) Order, 2005 (Annexure - F) and etc.
IN W.P.No.26542/2018:
BETWEEN:
M/s. Narthaki Bar and Restaurant,
(a Unit of Sai Leela Inc)
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Having its place of business at:
No.44/3, Chandraprabha Complex,
Residency Road,
Bengaluru - 560 025.
Represented by its Secretary
Mr. Shrinath. B. Shinde ...Petitioner
(By Sri. Bharath Kumar. V, Advocate)
AND:
1. The Commissioner of Police,
Bengaluru City,
Infantry Road,
Bengaluru - 560 001.
2. Station House Officer,
Ashok Nagar Police Station,
Shanthala Nagar,
Ashok Nagar,
Bengaluru - 560 025. ...Respondents
(By Sri. Ponnanna, AAG a/w
Sri. Vijay Kumar. A. Patil, AGA)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India, praying to direct the respondent
No.1 to accept the application dated 13.06.2018 of the
petitioner herein, filed under Clause 4 of the Licensing and
Controlling of Places of Public Entertainment (Bangalore
City) Order 2005, vide Annexure-A and etc.
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These Writ petitions coming on for Preliminary hearing
this day, the Court made the following:
ORDER
In W.P.No.25539/2018 and W.P.No.26396/2018, petitioners are seeking for issue of a writ of mandamus to direct the 1st respondent not to insist upon the Occupancy Certificate prior to issuance of licence as contemplated under Section 3 of the Licensing and Controlling of Places of Public Entertainment (Bengaluru City) Order, 2005 (hereinafter referred to as 'Controlling Order' for short) and for quashing of the endorsements dated 08.06.2018 and 11.06.2018 Annexure 'A' issued by 1st respondent, whereunder petitioners have been notified to close the performance of Live Band (Music Recorded/Live) from the date of receipt of the impugned notices.
2. In W.P.No.26542/2018 petitioner has sought for writ of mandamus to direct the 1st respondent to accept the application dated 13.06.2018 filed by the petitioner under
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Clause 4 of the Controlling Order and also for a direction to the 1st respondent not to insist upon Occupancy Certificate for issuance of licence as prescribed under Section 3 of the Controlling Order on the ground that building for which they are seeking licence is constructed prior to 1977.
3. I have heard the arguments of learned advocates appearing for the parties namely, Sri. Bharath Kumar V., learned counsel appearing for petitioners and Sri.Ponnanna, learned Additional Advocate General along with Sri. Vijay Kumar A. Patil, Addl. Government Advocate for respondents.
4. In all these petitions petitioners have been carrying on the business-Bar and Restaurant including sale of Indian made foreign liquor together with sale of eatables. It is the further contention of petitioners that the said establishment falls within the definition of "Live Band" as defined under Section 2 (j) of the Controlling Order as the establishment are catering to the general public and plays
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Live / Recorded music at its business. It is the grievance of petitioners that under the guise of enforcing the Controlling Order, respondents have issued the impugned closure notices to petitioners and respondent authorities are also not receiving the application submitted by them on the ground that Controlling Order mandates production of 'Occupancy Certificate' along with the application and said condition being onerous since building in which they are in occupation being more than 40-50 years old. Petitioners are not able to procure or furnish said certificate in as much as said certificate was not compulsory or mandatory as per the then existing law and as such producing said certificate does not arise. Petitioners have further contended that Commissioner of Police by memo dated 21.02.2009- Annexure 'G' (produced in W.P.No.26396/2018) has directed the Licensing Authorities not to insist for production of Occupancy Certificate and to receive the documents referred to in the said memo as substitution to Occupancy
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Certificate being alive of the factual position and as such, respondent authorities cannot insist upon petitioners herein to produce the Occupancy Certificate.
5. Per contra, Sri. Ponnanna, learned Additional Advocate General appearing on behalf of the State would vehemently contend that in the event of prayer sought for by the petitioners is being granted, it would amount to varying the conditions stipulated under the Controlling Order, the Constitutional validity of which has been upheld by the Hon'ble Apex Court in the case of KARNATAKA LIVE BAND RESTAURANTS ASSOCIATION V/S. STATE OF KARNATAKA AND OTHERS reported in (2018) 4 SCC 372 whereunder validity of said controlling order was also examined on the touch stone of Article 14 of Constitution of India and Hon'ble Apex Court having upheld the Constitutionality of said Controlling order and interfering
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with the conditions stipulated under said Controlling order by this Court is not called for.
6. Learned Government Advocate has filed a memo dated 02.07.2018 enclosing copy of the Memorandum dated 15.02.2018 issued by Commissioner of Police, Bengaluru, which discloses that pursuant to Hon'ble Apex Court judgment upholding the Constitutional validity of the Controlling Order, earlier Order dated 21.02.2009 Annexure 'J' (produced in W.P.No.25539/2018) has been withdrawn, in the interest of public safety and security. Hence, it is contended that petitioner cannot insist upon the benefit accruing under the Memo dated 21.02.2009 to contend that petitioners would be entitled to produce alternate documents as indicated in Memo dated 21.02.2009 in substitution to Occupancy Certificate. On these grounds, he has prayed for rejection of these writ petitions.
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7. Having heard the learned advocates appearing for parties and on perusal of the Controlling Order, it would disclose that under Section 3 - there is an obligation to obtain licence for the purposes of maintaining a public entertainment like live bands, cabaret, discotheque and same is mandatory. In other words, Section 3 of the Controlling Order mandates that no person would be entitled to open or maintain a place of public entertainment like live band, cabaret, discotheque without obtaining a licence as required under the Controlling Order. An application is required to be submitted under Section 4 of the Controlling Order by such person who intends to run or operate live band, cabaret, discotheque and Licensing Authority being the Commissioner of Police, Bengaluru City, would be empowered to either grant or refuse to grant such licence having regard to Clause (a) to (l) of Section 7.
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8. On this Controlling Order being promulgated Live Band Restaurants Association had unsuccessfully challenged the validity of the same before this Court and pursued their grievances before the Hon'ble Apex Court. Having regard to Article 19(1)(g) and (6) and applying the test of reasonable restrictions which can be imposed by the State under Article 19(6) of the Constitution of India, has upheld the validity of the Controlling order for grant of licence which deals with public safety, comfort, convenience, morality including law and order. It came be held by the Hon'ble Apex Court that controlling of such business activities by the State by calling upon its owner to obtain licence is a reasonable restriction which can be imposed by the State. Hence, validity of the said Controlling Order came to be upheld and it was also held that same is not arbitrary or discriminatory and it does not violate Article 14 of the Constitution of India. It has been further held by the Hon'ble Apex Court particularly with reference to Clauses 7,
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8 and 9, after having discussed in extenso to the following effect:
"62. In our considered opinion, the conditions specified in Clauses 7, 8 and 9 directly deal with the public safety, comforts, convenience, morality and law and order and we have not been able to find any kind of unreasonableness or arbitrariness in any of the abovementioned clauses so as to hold that they are unworkable for running the restaurant and to display the three performances.
63. In our view, those who find themselves unable to ensure compliances with these conditions or feel that it is not possible for them to comply, may not display the performances in their restaurants.
64. As held above, the public interest, the welfare and the safety of general public always override the right of an individual. There is no prohibition for any individual to carry on such business. However, if he wishes to carry on such business, he has to follow the norms and the statutory regulation framed for carrying on the business. He cannot be heard to say that he will carry on the business but without ensuring the norms and the regulations framed for the purpose.
65. In our opinion, here comes the application of the two maxims quoted supra while determining the rights of an individual qua public and the State.
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66. Indeed, we can take judicial notice of an incident occurred in recent past in a restaurant in Mumbai where life of several innocent people sitting in the restaurants were lost due to lapses in ensuring compliance with safety measures. Yet another incident of the similar nature occurred few years before in Uphaar Theatre in Delhi where several innocent people lost their life due to non-observance of safety measures.
67. When such incidents occur, they never obliterate from the memories of the citizen and leave a message to all the stakeholders that steps for strict compliance must be taken to avoid any such recurrence in future at any place. We hope that all the stakeholders will keep our observations in mind.
68. Ninth, all the measures set out in Clauses 7, 8 and 9 need to be complied with in letter and spirit by every restaurant owner before obtaining the licence and that they must continue to observe its compliances during currency of the licence on regular basis for the benefit, safety and the welfare of the customers and the residents of the area.
69. Tenth, the 2005 Order has rightly provided a check on the powers of the licensing authority in granting or refusing the licence inasmuch as the licensing authority is now required to give reasons for rejecting the licence.
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70. Such rejection can always be made the subject-matter of challenge in the court of law by an aggrieved. A provision of this nature eliminates any kind of arbitrariness on the part of the licensing authority while considering the grant or rejection of the licence under the 2005 Order.
71. This takes us to examine another question as to whether any case of arbitrariness or/and discrimination in issuing the 2005 Order as urged by the appellant is made out.
72. We are, however, unable to find any case of arbitrariness or discrimination having been made out by the appellant so as to attract the rigour of Article 14 of the Constitution.
73. Indeed, the 2005 Order does not create any discrimination between the two alike. The restaurants which are engaged in displaying the three performances specified in Clauses 2(b), (d) and (j) of the 2005 Order are under legal obligation to take licence under Clause 3."
9. It has been further held by the Hon'ble Apex Court that failure to obtain licence by establishment after granting a reasonable time to them should result in closure of such restaurants and as such has directed the Commissioner of Police and State Authorities to take steps in that regard after giving notice of closure to such
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establishments. Their Lordships have also directed that Licensing Authority would be empowered to close down such establishment which did not comply with the provisions of the Controlling Order. The direction issued by the Hon'ble Apex Court reads as under:
"79. Now we uphold the 2005 Order, we consider it apposite to direct the respondent Police Commissioner, Bengaluru to verify and ensure strict compliance with the licence conditions, including all the conditions of the 2005 Order in relation to all the licensees in whose favour, the licences have been issued so far.
80. The Commissioner will further verify and ensure that those restaurant owners who have not obtained licences so far and yet running their restaurant without holding the licence, such restaurant owners be granted some reasonable time to apply for obtaining the licence after ensuring compliances as provided in the 2005 Order, which alone will enable them to run their restaurants in conformity with the requirements of the 2005 Order.
81. Failure to obtain the licence after granting a reasonable time to the restaurant owners would result in closure of their restaurants after giving them notice of the closure.
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84. We hope the Commissioner will take into consideration these observations.
10. Keeping the aforesaid authoritative pronouncement of the Hon'ble Apex Court in mind when facts on hand are examined it would disclose that petitioners in W.P.Nos.26396/2018 and 25539/2018 have submitted their applications with all requisite documents except furnishing the Occupancy Certificate. A perusal of the Controlling Order at the cost of repetition would disclose that petitioner in Writ petition Nos. 26396/2018 and 25539/2018 have filed Form No.I viz, prescribed application for grant of licence to open or maintain a place of public entertainment like live band, cabaret, discotheque.
11. As per Clause 10 of the Application-Form-1, documents which are required to be furnished by an applicant are as under:
"10. Whether copies of following documents attached (whichever is applicable) : YES NO
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(i) Approved plan by BMP or BDA YES NO or any other civic agency
(ii) Copy of partnership deed, YES NO if it is a partnership firm.
(iii) Copy of lease agreement or title deed YES NO
(iv) Certificate from approved electrical contractors regarding the safety of electrical YES NO installations.
(v) Certificate from Fire Brigade regarding fire safety YES NO
(vi) Occupancy certificate issued by the concerned civic agency YES NO
(vii) Copy of Memorandum of Association (if applicable) YES NO If any other documents are required, the same will be submitted. It is requested that necessary licence may kindly be granted. I undertake to abide by the conditions of the licence."
12. As urged by the petitioners in their respective two writ petitions, Occupancy Certificate issued by the concerned Municipal Authority is one such document specified in Column No.10, required to be filed by an
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applicant along with the application for grant of licence to be issued by the Licensing Authority, had not been furnished contending it is a condition which is onerous and impossible since the buildings in which they are running the restaurants are constructed prior to 1976.
13. The Karnataka Municipal Corporation Act, 1976 came into force w.e.f. 31.05.1977 and Section 310 mandates that every person who undertakes construction of a building in the municipal area is required to deliver or forward or send an intimation to the Commissioner, Bruhath Bengaluru Mahanagara Palike, after completion of the building or the execution of any such work within one month from such date of completion of construction accompanied by a certificate to said effect as prescribed under the bye-laws. On perusal and plain reading of Sub- Section (2) of Section 310, it would indicate that no person would be entitled to occupy or permit to be occupied any
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such building or part of the building or use or permit to be used or part thereof until the Commissioner has granted the permission. In this regard if Clause (b) of Sub-Section (2) of Section 310 is read it would disclose that even after receipt of notice of completion, if the Commissioner fails to intimate his refusal, it would result in deemed permission having been granted. Infact Co-ordinate bench of this Court in the case of P.SHYAMARAJU VS. KARNATAKA ELECTRICITY BOARD, BENGALURU AND OTHERS reported in 1997 (5) KAR L.J. 1987 had an occasion to examine the deeming provisions namely Sub-Section (2) of Section 310 of the Karnataka Municipal Corporation Act, 1976 and held that on submission of an application for grant of Completion Certificate to the Commissioner, if within 30 days of receipt of such application, if no order refusing permission is passed or the permission having not been refused, it would be deemed grant of Completion Certificate under Clause (b)
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of Sub-Section (2) of Section 310 of the Karnataka Municipal Corporation Act, 1976.
14. In the light of aforestated position of law, if an applicant for grant of licence under Controlling Order is able to satisfy the Licensing Authority that such communication had infact been submitted or produces an acknowledgement for having submitted such application to the Commissioner, BBMP and no order refusing permission having been passed, it is needless to state that Completion Certificate is deemed to have been granted as per Clause (b) of Sub- Section (2) of Section 310 of the Karnataka Municipal Corporation Act, 1976 and in such circumstances, the authorities would not be required to compel or insist such applicant to produce the Occupancy Certificate. However, to ensure check and balance in that regard Commissioner would be at liberty to impose any reasonable condition on such applicant.
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15. Though Sri. Bharath Kumar V., learned counsel appearing for petitioners has vehemently and strenuously contended that when various other statutory authorities like Water Supply Board, Electricity Board have provided Water and Electricity connections, it is deemed that Occupancy Certificate has been granted or in other words, when there is no refusal of such permission by Commissioner of BBMP and as such Commissioner of Police should not insist upon petitioners producing occupancy certificate, such contention requires to be considered for the purpose of out-right rejection. An applicant cannot contend that illegality even if any, having been committed by a particular Statutory Authority, is required to be continued by another Statutory Authority which is an instrumentality of State or continue to perpetrate such illegality.
16. In the instant cases, as noticed hereinabove, petitioners are claiming that buildings in which they are
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carrying on business in public entertainment have been constructed in 1977 in W.P.No.25539/2018 and in the year 1971 insofar as building which is subject matter of W.P.No.26396/2018. It is not in dispute that in these two respective petitions, where petitioners are carrying on their business activity in all consists of ground, first floor and second floor and ground floor respectively. In both the petitions, petitioners have produced building plans. However, Occupancy Certificates have not been produced. Sri. V. Bharath Kumar, learned counsel appearing for petitioners would fairly submit that petitioners would restrict their claim insofar as the place of business or area where the petitioners are carrying on their businesses like First Floor or Ground Floor as the case may be. That would not be an issue to be adjudicated or answered by this Court. It is for the Licensing Authority to take decision in this regard, namely whether Occupancy Certificate is to be
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produced in respect of the building or relating to the particular floor.
17. Whether the Licensing Authority can insist for submission of Occupancy Certificate by the applicant even in respect of building which has come into existence prior to 1976 i.e., prior to the Karnataka Municipal Corporation Act, 1976, coming into force w.e.f. 31.05.1977, is an issue which requires to be considered in the background of Section 310 of the Karnataka Municipal Corporation Act, 1976. In the absence of the Act being made retrospective effect, the respondent-Licensing Authority cannot insist upon the applicants to produce the Occupancy Certificates in respect of those buildings which were constructed prior to 1976. It is needless to state that after inspection of such building by the Licensing Authority it is found that ground floor has been constructed prior to 1976 and other floors have come into existence or having been constructed subsequent to
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1976 and in the event of applicant being in occupation of both floors, then in such circumstances the Licensing Authority can still insist for production of Occupancy Certificate by an applicant. However, in cases where the buildings have come up prior to 1976, which do not have Occupancy Certificates and businesses are being run, in such buildings, Sri. Ponnanna, learned Additional Advocate General as rightly contended is a grey area which has to be addressed to, by this Court in as much as Controlling Order is silent on this aspect namely Form No.I does not indicate or specify as to what other documents can be produced by an applicant in the absence of Occupancy Certificate.
18. As already noticed hereinabove, an applicant is required to enclose Occupancy Certificate issued by BBMP along with application, in respect of place of business for which licence is sought and in the absence thereof, the Licensing Authority naturally refuses to entertain such
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application or would reject such application for want of Occupancy Certificate. Karnataka Municipal Corporation Act, 1976, having come into force w.e.f. 31.05.1977, Licensing Authority would not be justified in calling upon the applicants who seek for licence to run public entertainment to produce occupancy certificate, which was not being issued by the Municipal Authorities prior to 31.05.1977. On Licensing Authority being satisfied that documents produced by an applicant would establish that such building in respect of which licence has been sought had been constructed prior to the Karnataka Municipal Corporation Act, 1976, coming into force w.e.f. 31.05.1977, then Licensing Authority in such circumstances can call upon an applicant to produce a Certificate issued by the Jurisdictional Executive Engineer of Bruhath Bengaluru Mahanagara Palike certifying that structure in question being safe and fit for being used and occupied. Licensing Authority on being satisfied with the certificate so furnished
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by the applicant can proceed to adjudicate or decide as to whether licence should be granted or not. With these observations Writ petition Nos.26396/2018 and 25539/2018 can be disposed of by reserving liberty to the petitioners to produce said certificate before the Licensing Authority and on production of same, 1st respondent shall process the applications of petitioners expeditiously at any rate within 30 days from the date of production of said certificate and pass orders.
Accordingly, W.P.Nos.26396/2018 and 25539/2018 stands disposed of.
19. Insofar as W.P.No.26542/2018 is concerned as already noticed herein above, it is the grievance of the petitioner that application - Annexure-A with enclosures when sought to be submitted by the petitioner pursuant to order passed by Hon'ble Apex Court in C.A No.4741/2017 on 25.01.2018 1st respondent, is said to have refused to
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receive the application without occupancy certificate being enclosed. However, same has been denied by the learned Government Advocate. It is specifically contended by petitioners at paragraph 6 of the writ petition that application submitted by the petitioner was not accepted or received by 1st respondent, since the Occupancy Certificate was not enclosed along with the application and it is also contended that staff employed in the office of the 1st respondent had refused to receive the application submitted by petitioner on the ground that oral instruction had been issued by 1st respondent not to receive such applications. At this juncture, learned Additional Government Advocate on instructions from the legal advisor Sri. Ganesh Babu, who is present before the Court would submit that office of 1st respondent or his designated officer would receive the application submitted by the petitioners or applicants similarly placed. His submission is placed on record.
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In that view of the matter, placing the submission of learned Additional Government Advocate on record and reserving liberty to the petitioner to re-submit the application - Annexure-A to the 1st respondent or his designated authority within ten days from today or on receipt of certified copy of this order and subject to observations made hereinabove W.P.No.26542/2018 stands disposed of.
Ordered accordingly.
SD/-
JUDGE SV/-