Karnataka High Court
M/S. Prasad Technology Park (P) Ltd., vs The State Of Karnataka on 18 June, 2019
Author: Alok Aradhe
Bench: Alok Aradhe
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18th DAY OF JUNE 2019
BEFORE
THE HON'BLE MR. JUSTICE ALOK ARADHE
WRIT PETITION NO.21189 OF 2019 (GM-POLICE)
BETWEEN:
M/S. PRASAD TECHNOLOGY PARK (P) LTD.,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT,
HAVING ITS OFFICE AT
NO.2/10, 3RD FLOOR, POOJARI LAYOUT,
80 FT ROAD, R M V 2ND STAGE,
BANGALORE 560094,
REP BY ITS AUTHORIZED REPRESENTATIVE
MR. VINOD KUMAR.
... PETITIONER
(By Mr. RAVI B NAIK, SR. ADV. FOR
Mr. SIDDHARTH B MUCHANDI, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP BY ITS PRINCIPAL SECRETARY
TO THE GOVERNMENT,
DEPARTMENT OF ENVIRONMENT,
M.S.BUILDING,
DR. B.R.AMBEDKAR VEEDHI,
BANGALORE 560001.
2. THE CHAIRMAN AND
MEMBER SECRETARY,
KARNATAKA STATE POLLUTION
CONTROL BOARD, NO.49,
PARISARA BHAVAN, 4TH AND
5TH FLOOR, CHURCH STREET,
BANGALORE 560001.
3. THE COMMISSIONER OF POLICE
BANGALORE CITY, INFANTRY ROAD,
BANGALORE 560001.
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4. THE ADDL. COMMISSIONER OF POLICE
BANGALORE EAST, INFANTRY ROAD,
BANGALORE 560001.
5. THE CHIEF ADMINISTRATIVE
OFFICER AND EXECUTIVE MEMBER,
KIADB, KHANIJA BHAVAN,
BANGALORE 560001.
6. THE COMMISSIONER
B.B.M.P, N.R.SQUARE,
HUDSON CIRCLE, J.C.ROAD,
BANGALORE 560002.
7. THE DEPARTMENT OF
MINES AND GEOLOGY
NO.49, KHANIJA BHAVAN,
RACE COURSE ROAD,
BANGALORE 560001.
8. M/S SARANALAJAYALAKSHMI
HOSPITALITY PRIVATE LIMITED,
A COMPANY INCORPORATED
UNDER THE COMPANIES ACT,
HAVING ITS OFFICE AT PLOT. NO.98
& 99, EPIP INDUSTRIAL AREA,
HOODI VILLAGE, KRISHNARAJAPURAM,
BANGALORE 560066.
REP BY ITS MANAGING DIRECTOR
S.SREEDHAR RAO
ALSO AT:
M.S SANDHYA HOTELS PVT LTD.
REP BY ITS MANAGING DIRECTOR
MR. S SREEDHAR RAO,
AT SY.NO. 86, 87, 90, 91,
SANDHYA TECHNO-1,
OPP SUNSHINE HOSPITAL,
RAIDURG MAIN ROAD,
HYDERABAD 560032.
... RESPONDENTS
(By Mr. VIJAY KUMAR A PATIL, AGA FOR R1, 3, 4, 5 & 7,
Mr. K B MONESH KUMAR, ADV. FOR R5,
Mr. ROHAN HOSMATH, ADV. FOR R8
R2 & 6 SERVED THROUGH LAND SUMMONS
AND UNREPRESENTED)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
NO-OBJECTION CERTIFICATE DTD:24.4.2019 IN FAVOUR OF THE
R-8 FOR PLOT NO.98 AND 99 IN SY NO,152, E.P.I.P INDUSTRIAL
AREA, HOODI VILLAGE, BANGALORE AND ALL ACTIONS
PURSUANT THERETO; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Sri.Ravi B.Naik, learned Senior counsel for Sri.Siddharth B. Muchandi, learned counsel for the petitioner.
Sri.Vijay Kumar A.Patil, learned Additional Government Advocate for the respondent Nos.1, 3, 4, 5 and 7.
Sri.K.B.Monesh Kumar, learned counsel for the respondent No.5.
Sri.Rohan Hosmath, learned counsel for the respondent No.8.
2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
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3. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner inter alia seeks a writ of certiorari for quashment of No Objection Certificate issued in favour of the respondent No.8 in respect of plot Nos.98 and 99 in Sy.No.152, EPIP Industrial Area, Hoodi Village, Bengaluru. The petitioner also seeks a direction for the respondent Nos.1 to 7 not to permit the respondent No.8 to deploy blasting of rock of the aforesaid plots.
4. Facts giving rise to the filing of the petition briefly stated are that the petitioner is the owner of plot No.97 in Sy.No.152, Road No.2, EPIP Industrial Area, Whitefield, Bengaluru - 560 066. The petitioner, on the aforesaid property, has constructed a commercial building. The respondent No.8 is the owner of the adjoining plot namely plot No.98 and 99 in Sy.No.152, EPIP Industrial Area, Hoodi Village. It is the case of the petitioner that respondent No.8 indulged in illegal 5 blasting of the rock. Thereupon, the petitioner made a complaint on 30.03.2019 to the Commissioner of Police, Bengaluru along with acknowledgement. It is averred in the writ petition that Deployment Officer of KIADB vide communication dated 05.04.2019 informed the respondent No.8 that conducting blasting operation and putting up construction without sanction from the Board is illegal and unauthorized. However, despite the objection preferred by the petitioner as well as the KIADB, a No Objection Certificate was issued by the Commissioner of Police for a period of one year i.e. 24.04.2019 to 23.04.2020. In the factual background, the petitioner has approached this Court.
5. Learned Senior counsel for the petitioner, while inviting the attention of this Court to Rule 103 of the Explosives Rules, 2008 framed under the Explosives Act, 1884, submitted that the procedure prescribed under the Rule for issuance of the No Objection Certificate has not been followed and the No Objection Certificate has 6 been issued by the Commissioner of Police and the impugned No Objection Certificate is per se without jurisdiction as the No Objection Certificate was required to be issued by the District Magistrate, after following the procedure prescribed under Rule 103 of the Rules. It is also averred that the objections preferred by the petitioner were not considered.
6. Learned Additional Government Advocate, in compliance of the order dated 03.06.2019, has produced the report and has filed objections. It is submitted by the learned Additional Government Advocate that an enquiry was conducted by the Commissioner of Police before issuing the No Objection Certificate in favour of the respondent No.8.
7. Learned counsel for the respondent No.5 - Board, while inviting the attention of this Court to Regulation 4 of the Building Regulations framed by the Board, has urged that without obtaining any sanction by 7 the Board, the respondent No.8 has started raising construction which is illegal and therefore, a communication was sent to respondent No.8 in this regard.
8. On the other hand, learned counsel for the respondent No.8 has submitted that infact permission has been granted to the petitioner under Section 31 of the Karnataka Police Act, 1963. It is further submitted that it is not necessary for the respondent No.8 to obtain prior sanction of the respondent No.5 - Board before proceeding further with the construction. It is also urged that the petitioner has already obtained building permission from the Bruhat Bengaluru Mahanagara Palike.
9. I have considered the submissions made by both the sides and have perused the record. It is trite law that the provisions of special law prevail over the general law. Section 31 of the Karnataka Police Act, 8 1963 deals with power to make orders for regulation of traffic and for preservation of order in public places, etc. Section 31(1)(r) provides that the Commissioner and the District Magistrate in the areas under their respective charges or any part thereof, may make, alter or rescind orders for licensing and controlling or in order to prevent obstruction, inconvenience, annoyance, risk, danger or damage to the residents or passengers in the vicinity prohibiting inter alia blasting of rock or making excavations in or near streets or public places. Rule 103 of the Explosives Rules, 2008 which is relevant for the purpose of controversy involved in the petition is reproduced below:
103. Procedure to be observed for issue of no objection certificate and for grant of licence. - (1) The applicant desiring to obtain a licence from the Chief Controller or Controller, shall apply to the District Magistrate or the Director General of Mines Safety with copies of the site plan showing the location of the premises proposed to be licensed for issue of a certificate to the effect 9 that there is no objection to the applicant receiving licence for the site proposed.
(2) The District Magistrate shall be the authority to issue the certificate referred to in sub-rule (1) if the area of the proposed site does not come under the Indian Mines Act, 1952 (35 of 1952) and the Director- General of Mines Safety shall be such authority if the area of the proposed site is for ANFO, Liquid Oxygen Explosives or SME and comes under the Indian Mines Act, 1952.
(3) The District Magistrate on receipt of application referred in sub-rule (1), shall make verification of the antecedents of the applicant, lawful possession of the site, genuineness of the purpose, interest of public and any other verifications or enquiries as may be specifically required by the licensing authority to be carried out, if any, and on any other matter as deemed necessary.
(a) For verification of the interest of public, the District Magistrate shall forthwith cause a notice to be published calling upon the public to submit objections, if any, with 10 reasons thereof, within a period of one month from the date of publication of the notice and specifying the date, time and place for consideration of objections by him. Where the site of the proposed premises lies within 1.5 kilometers of the limits of the jurisdiction of any town planning municipal authority or port or air port or satellite or space craft launching station or similar establishments of national importance, the District Magistrate shall cause the notice to be served to such authority or establishment. The day of hearing for consideration of objections shall be fixed as early as possible, after the expiration of the period of one month from the date of publication of notice. On receipt of objection, the District Magistrate shall call the person or persons raising objection and also the applicant, giving not less then seven clear days before the day fixed for hearing for consideration of the objection. On the day fixed for the hearing or any day to which such hearing may be adjourned from time to time, the District Magistrate shall hear any objection relating to the purpose of no 11 objection certificate and shall make such enquiry, as he may deem necessary to assess justification of such objection."
10. In view of aforesaid well settled legal position that the provisions of special law prevail over the general law, it is evident that the request of the petitioner for grant of No Objection Certificate was required to be processed under Rule 103 of the Explosive Rules, 2008, after following the procedure prescribed therein. However, in the instant case, in purported exercise of powers under Section 31 of the Karnataka Police Act, 1963, the Commissioner of Police has granted the permission to the respondent No.8 for excavation of the rocks that too without considering the objections preferred by the petitioner and without holding an enquiry. The impugned order is per se without jurisdiction. The impugned order is accordingly quashed.
The parties as well as the respondent No.8 and the officer authorized by the respondent No.5 undertake to 12 appear before the Commissioner of Police on 26.06.2019. Thereafter, the Commissioner of Police shall consider the application filed by the respondent No.8 under Rule 103 of the Explosive Rules, 2008 by considering the objections preferred by the petitioner or any other aggrieved persons and deal with the issue after following the procedure prescribed in the aforesaid Rule expeditiously by a speaking order within a period of one month from the date of receipt of certified copy of the order passed today.
Accordingly, the petition is disposed of.
Sd/-
JUDGE RV