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Judgment
The petitioner is a permanent resident of the house property bearing 1 situate in 20th Cross, Cubbonpet, Bangalore has filed this writ petition seeking for issuance of a writ of certiorari for quashing the resolutions dated 8-11-1999 (Annexures-G and H), passed by the second respondent wherein it has resolved to renew the licence Nos. 16076, 16077 and 16078 of 24-8-1994 (i.e., Power licence of 5 HP each) in favour of respondents 4 to 6 by restoring and prayed for confirment of the order dated 14-12-1998 (Annexure-F) passed by the third respondent-Deputy Health Officer and further prayed for dismissal of the Appeal Nos. 7 of 1999-2000 and 14 of 1999-2000 filed by respondents 4 to 6 before the second respondent and further sought for a issuance of a writ of mandamus, directing the respondents 4 to 6 not to run the powerloom factory in the premises No. 27, 20th Cross, Cubbonpet, Bangalore and further direction to the seventh respondent to disconnect and cancel the power supply provided to the sixth respondent as per electrical installation urging various facts and legal contentions.
The necessary and relevant brief facts are stated herein below for the purpose of considering the rival contentions urged on behalf of the parties and to answer the same.
The respondents 4 to 6 are running the powerloom factory in the premises bearing No. 27, 20th Cross, Cubbonpet, Bangalore by installing 5 HP electrical motor each in the names of the respondents 4 to 6. The sixth respondent is claiming to be the owner of the said house property. The grievance of the petitioner is that on account of running these powerloom factories in the said premises by the contesting respondents 4 to 6 referred supra is causing unbearable nuisance for the petitioner and members of his family as well as his other immediate neighbours of the said house property, where the powerloom factories have been running by them. It is the further case of the petitioner that the powerloom factories in the residential area causing abnormal, unusual, constant, perpetual, continuous and unbearable nuisance amounting to interference with the physical comforts of the petitioner and others, who are residing in the locality thereby their peaceful enjoyment of life has been affected. The contesting respondents 4 to 6 have been running the factories continuously from 7 a.m. to 8 p.m. including on holidays on account of running the powerloom factory by them. The petitioner and other residents of the locality are being inconvenienced on account of the generation of sound pollution by running the powerloom factories by the contesting respondents. It is the case of the petitioner that the Deputy Health Officer (Central) of the first respondent-Corporation after considering the complaint of the petitioner regarding alleged nuisance (sound pollution) after conducting a spot inspection a mahazar was drawn by him on 18-1-1997 by his order dated 3-10-1997 has cancelled the licences issued to the respondents 4 and 5 and sent the communication dated 4-10-1997 to the Assistant Engineer, Karnataka Electricity Board, Cubbonpet, Bangalore, to disconnect and cancel the power supply vide Annexures-A and B. The 4th respondent was aggrieved of the said order passed by the Deputy Health Officer, Chickpet Division has filed the writ petition before this Court in W.P. No. 30399 of 1997 seeking for quashing the said communication issued by the Deputy Health Officer on the ground that the cancellation of the licence is without providing him an opportunity of being heard is in violation of the principles of natural justice. After hearing the parties, this Court vide its order dated 15-10-1998 allowed the writ petition by quashing the order passed by the Deputy Health Officer with a liberty to the concerned authority to take appropriate action after notifying and hearing the respondents 4 to 6 vide Annexure-C. The case of the petitioner is that after the order was passed by this Court hearing the respondents 4 to 6 again passed an order on 12-5-1998 cancelling the licences issued in their favour for the second time and again sent a communication dated 19-5-1998 to the Assistant Executive Engineer, KEB, Cubbonpet, Bangalore intimating him regarding the cancellation of licences and requesting him to cancel the power supply to the factories in question vide communication dated 19-5-1998. Aggrieved of the said order, the respondents 4 to 5 have again filed writ petitions before this Court in W.P. Nos. 22910 of 1998 and 24120 of 1998 on the ground that the orders cancelling the licences by the Deputy Health Officer of the Corporation have been passed without considering their objections and without recording a finding on the contentions raised by them in the objection statement, the said writ petitions were also allowed by the Court vide order dated 24-8-1998. The matter was again remanded back to the Deputy Health Officer with a direction to him to reconsider the entire matter afresh after affording an opportunity to them and to pass an order in accordance with law.
After hearing the learned Counsels appearing on behalf of the parties at length this Court has perused the. pleadings and the orders passed by the Licensing Authority in refusing to grant the licences by way of renewal on the application submitted by the respondents 4 to 6 and also perused the impugned orders passed by the second and third respondents, documents produced by the parties. As could be seen from the undisputed facts narrated by the parties, the contesting respondents herein have been litigating the matter by filing writ petition after writ petitions, challenging the order passed by the Licensing Authority on the complaint of this petitioner. The Licensing Authority of the first respondent-Corporation on the application submitted by the contesting respondents for grant of renewal of licences in their favour was examined and considered by him keeping in view the directions issued by this Court in the orders passed in the earlier writ petition referred supra and on the basis of the mahazar drawn by him after conducting the spot inspection he had recorded the findings stating that there is a nuisance caused by generating sound pollution from the powerloom factory run by the contesting respondents to the petitioner and the neighbours of the factory, where the contesting respondents have been running the powerloom factories of 5 HP motor installation by each one of the contesting respondents by perusing the order passed by the Licensing Authority.
It is noticed that he has rightly exercised his power under Section 354, sub-section (3), clauses (a) and (b) of the Karnataka Municipal Corporations Act, 1976 after recording cogent valid reasons for refusing to grant the licences in their favour by renewing their earlier licences. The respondents 4 to 6 aggrieved of the order passed by the Licensing Authority filed an appeal before the second respondent-Appellate Authority under Section 444 of the Karnataka Municipal Corporations Act of 1976. The Appellate Authority was required to examine the correctness of the order passed by the Licensing Authority with reference to the provisions of the Act and the law laid down by the Apex Court and this Court in such matters and further it should have considered that the Licensing Authority has refused to renew the licences by considering the relevant facts and the provisions of the Act, 1976. It is noticed that the finding of fact recorded by the Licensing Authority has been annulled by it without assigning proper and valid reasons and further examining and considering the relevant facts which were found by the Licensing Authority at the time of conducting the mahazar in the factories and also the relevant provisions of the Karnataka Municipal Corporations Act, 1976 and the second respondent has further recorded the finding but the petitioner is running a grinder and in the neighbouring building floor mill is being run in and around the area in question. Powerlooms are being run by various persons and further in the Cubbonpet area number of powerlooms are installed and the said area is called as "Powerloom Extension" and further on the basis of the statement of the contesting respondent Sri M. Lakshminarayana and Smt. Ranganayaki-4th and 5th respondents they are eaking out their livelihood by carrying on with the powerloom business. Therefore, their request for renewal of licences and on the basis of the order passed by this Court in the earlier Writ Petition Nos. 22910 of 1998 and 24120 of 1998, this Court had given directions to the Corporation to consider their case, the Appellate Authority after perusing the file considering the statement of the respondents 4 and 5, it is held that Cubbonpet area is famous for weavers'' extension, therefore, the neighbouring residents of the locality cannot complain about the sound pollution and the above said respondents have agreed to withdraw the Original Suit No. 6341 of 1998. Therefore, the second respondent has decided to renew the licences in favour of the contesting respondents by allowing the appeals and granted the licences in favour of the contesting respondents vide impugned orders in this petition without assigning valid and cogent reasons for setting aside the orders of the Licensing Authority. By reading these two impugned orders passed by the second respondent this Court has to hold that it has not applied its mind to the facts of the case and natural evidence on record and it has not considered the valid reasons assigned by the Licensing Authority for refusing to renew the licences in favour of the contesting respondent. Therefore, this Court has to hold that the impugned orders Annexures-G and H passed by the second respondent allowing the appeals filed by the contesting respondent which orders are not legal and valid as the same are in contravention of the provisions of the Act, 1976 and law laid down by the Apex Court and this Court, and the said orders are also bad in law for the reason that the second respondent has not recorded valid reasons in reversing the findings recorded by the Licensing Authority on the basis of the record which was placed before him. In my considered view that the reasons assigned by the Licensing Authority in his order in refusing to grant the renewal of licences to the contesting respondents is in conformity with Section 354(3), clauses (a) and (b) and also under the provisions of the Air (Prevention and Control of Pollution) Act, 1981 (in short called as ''A(PCP) Act, 1981'') and the law declared by the Division Bench of this Court and the Apex Court.
The impugned orders passed by the second respondent in exercise of its statutory powers conferred upon it under Section 444(2) of the Act, 1976 is not legal and valid as it has not considered valid and cogent reasons assigned by the Licensing Authority wherein he has clearly recorded a finding on fact by running the powerloom factories by the respondents 4 and 5 sound pollution is being generated which would cause nuisance in terms of Section 354(3), clauses (a) and (b) of the Act and they have no such right to cause sound pollution in the area and further recorded a finding of fact that the licences issued by the Licensing Authority in their favour was cancelled and therefore under the provisions of the Act of 1976, the renewal of licences is not permissible. Non-consideration of these relevant facts and the findings recorded by the Licensing Authority who is competent to record his reasons for refusing to renew the licences should have been taken into consideration by the second respondent the Appellate Authority herein at the time of exercising its power and jurisdiction that has not been done by it while exercising appellate power by it, thereby it has committed an error in law by setting aside the order passed by the Licensing Authority without giving valid reasons pointing out that the findings recorded by the Licensing Authority are neither in conformity with the provisions of the Act nor based on materials on record and the reasons assigned by him in refusing to renew the licences is contrary to law. In not considering the order passed by the Licensing Authority in perspective way and simply allowing the appeals filed by the contesting respondents stating that it has perused the file considered the statements of the respondents 4 and 5 and held that Cubbonpet area is famous for the weavers called ''Weavers'' Extension'' and complaining about the sound pollution by the neighbouring residents is not proper which reasons assigned by the second respondent are untenable in law. Hence, the orders at Annexures-G and H are liable to be quashed. The second respondent without examining where the order passed by the Licensing Authority is in conformity with the provisions of the Act it has exceeded in its power in allowing the appeals and setting aside the order of Licensing Authority. Therefore, the impugned orders are contrary to law, which cannot be allowed to sustain by this Court.
In support of the justification of the impugned orders passed by the second respondent, the learned Counsels appearing on behalf of the respondents 4 and 6 have placed reliance upon the documents at Annexure-R5, the Comprehensive Development Plan (Revised), Bangalore and the report wherein District-11 would disclose that out of 84.23 hectares of land in the District-11 and the proposals for allocation of land for various purposes is detailed in the table for planning District-11 and further reveals that only 84.23 hectares of land is covered under residential use which works out to 11.55% of the total district area and further stated that the residential areas are noticed in Cottonpet, Cubbonpet and Chamarajapet areas and further placed reliance upon the said document to show that Commercial use occupies an area of 275.70 hectares and works out 37.81% of the total planning district area. The aforesaid material facts are referred to by the learned Counsel in the documents mentioned supra to show that the impugned orders are legal and valid. It is also further stated that the petitioner house is situated in the commercial planning area. Therefore, he has submitted that this Court need not interfere with the impugned orders with reference to the above said contentions and keeping in view the provisions of the Karnataka Municipal Corporations Act of 1976 and A(PCP) Act, 1981, the submission made by the learned Counsels on behalf of the parties is examined by this Court in this writ petition. As could be seen from the documents at Annexure-R5, though the area is shown as commercial planning area, there are the number of residents in the area in question is also shown in the said document and it is not the case of the respondents that the petitioner is not the resident of the area in question.
It is not the case of the contesting respondents that they have obtained the consent order under Section 22 of the A(PCP) Act of 1981. The submission made in this regard on behalf of the contesting respondents by the learned Counsel is that the provisions of the said Act are not applicable to the factories in question. This contention is also examined by this Court with reference to Section 2(a) "Air Pollutant"; 2(b) "Air Pollution"; 2(k) "Industrial Plant" and Section 19 of the Act. By closely reading the definitions of the aforesaid definition clauses of Section 2 and Section 19 of the A(PCP) Act of 1981, and further the Karnataka State Government after consultation of the Karnataka State Pollution Control Board has issued the notification in the Official Gazette declaring the entire Karnataka State as Air Pollution Control Area or areas for the purposes of this Act. Therefore, the contention urged on behalf of the contesting, respondents that the provisions of the Act has no application is only untenable in law, the same cannot be accepted by this Court. This Court considering the provisions of Section 7 Schedule III of the Act, 1981 defines Noise Pollution. It is worth while to refer the judgment of this Court reported in Hebbal Gangenahalli Layout Residents Association and Others v Corporation of the City of Bangalore and Others, 1992(3) Kar. L.J. 40 (DB). Wherein this Court considering the Zoning Regulations of 1972 and various provisions of the Karnataka Municipal Corporations Act of 1976 and the judgment of the Apex Court in Rural Litigation and Entitlement Kendra, Dehradun and Others v State of Uttar Pradesh and Others, AIR 1985 SC 652, of the said judgment, the Division Bench of this Court has extracted the relevant paragraph 12 of the judgment of the Apex Court which is extracted as hereunder:
"12. The consequence of this order made by us would be that the lessees of limestone quarries which have been directed to be closed down permanently after consideration of the report of the Bandopadhyay Committee, would be thrown out of business in which they have invested large sums of money and expended considerable time and effort. This would undoubtedly cause hardship to them but it is a price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle homes and agricultural land and undue affection of air, water and environment. However, in order to mitigate their hardship, we would direct the Government of India and the State of Uttar Pradesh that whenever any other area in the State of Uttar Pradesh is thrown open for grant of limestone or dolomite quarrying, the lessees who are displaced as a result of this order shall be afforded priority in grant of lease of such area and intimation that such area is available for grant of lease of such area and on the basis of such application, priority may be given to them subject, or course, to their otherwise being found fit and eligible. We have no doubt that while throwing open new areas for grant of lease for limestone or dolomite quarrying, the Government of India and the State of Uttar Pradesh will take into account the considerations to which we have adverted in this order".
The Division Bench has considered the judgment of the Apex Court at paragraph 7 and the Division Bench has extracted the relevant paragraphs 12 of the Apex Court which is extracted herein and further this Court has also considered the judgment of Kerala High Court in P.A. Jacob v The Superintendent of Police, Kottayam and Another, AIR 1993 Ker. 1. The Division Bench judgment of this Court and the Kerala High Court judgment are referred by this Court in W.P. No. 27156 of 1997 disposed of on 8-4-1999 (unreported judgment) has clearly held that if the noise pollution is generated either grant of licence or renewal of licence in favour of the powerloom industry cannot be granted and the same would be in consonoation with the zoning regulations framed by the State Government under the Karnataka Town and Country Planning Act, 1961 and further this Court has to hold that Municipal Corporation is statutorily obliged to uphold the law in respect of the residential locality at the time of considering the applications for grant of renewal of licences for running powerlooms in the residential area as it would cause noise pollution to the residents of the locality. This Court in the aforesaid unreported judgment has also held, after considering the said legal contentions urged by the learned Counsels on behalf of the parties in the said writ petition as urged by the contesting respondents Counsel in this case, contending that the fundamental rights guaranteed to the contesting respondents in this writ petition under Articles 14, 19(l)(g) and 21 of the Constitution of India are affected and the said legal contentions has been repelled by this Court for more than one reason, namely, the rights of such persons are subject to the reasonable restrictions that are imposed on them in pursuant to the provisions of the Act, the Rules and Zonal Regulations referred to above and the Parliament in exercise of its legislative powers under the Constitution of India, keeping in view the United Nations Conference held on the Human Environment in Stockholm in the month of June 1972 in which conference our country has participated and taken appropriate steps for the preservation of the natural resources of the earth and enacted the law called as "Air (Prevention and Control of Pollution) Act, 1981 to prevent the Air Pollution, Water Pollution, and Noise Pollution in the pollution control area that is declared under the provisions of the Act to safeguard the interest of the public at large.
Therefore, this Court has to hold that the Act referred above is enacted by the Parliament as a regulatory measure to regulate for establishment of the factories in the country to see that the establishment of such factories should not create ecological imbalance in the area, thereby the health conditions of large number of residents of the locality should not be affected. The State Government in exercise of its power under Section 19 of the A(PCP) Act after consultation with the Karnataka State Pollution Control Board has issued the notification declaring the Karnataka State as Pollution Control Area to see that the environment of the area is maintained and not to cause any health hazards to the human beings and living creatures in the area. Maintenance of the environment and ecology are the fundamental duties of the citizens of the country and the State under Chapter IV-A of the Constitution. The A(PCP) Act referred above defines establishment of the factory to carry on with the commercial activities strictly in conformity with the provisions of the Act and Environment (Protection) Rules, 1986 with a view to maintain environment and ecology in the State and to achieve the object and intentment of the Act. Further, this Court has to hold by answering the legal submissions, that the contesting respondents fundamental rights are affected as guaranteed under Part III of the Constitution is not tenable in law for the reason that the individual interest of the citizens like the respondents 4, 5 and 6 shall be subject to the public interest and large number of residents of the area in question. The paramount consideration for this Court is the public interest at large but not the individuals like the contesting respondents as their rights are subject to the reasonable restrictions imposed under Article 19(6) of the Constitution by enacting the law called the A(PCP) Act for running their factories.
Further respondents 1 and 2 who are being a statutory Corporation and authority conferred with the power of grant of trade licences under the provisions of the Karnataka Municipal Corporations Act in favour of the eligible persons are required to enforce the statutory provisions of the Karnataka Municipal Corporations Act, 1976, A(PCP) Act, Rules and Regulation and law laid down in this regard by the Apex Court and this Court to maintain ecology and environment of the State including the area in question. Keeping these relevant aspects in mind the Licensing Authority has rightly passed the order refusing to grant the trade licence by renewing the same as prayed for by the contesting respondents. The exercise of power by him is in conformity with the provision of the Acts and the Rules referred to above with a view to regulate the provisions of the Acts to prevent noise pollution that would be generated by running the powerloom factory of 5 HP motor by each one of them on account of which large number of residents health would be drastically affected. Therefore, the contentions urged on behalf of the contesting respondents Counsel contending that their rights to carry on with the business, running powerlooms as guaranteed under Articles 19(l)(g) and thereby they are earning their livelihood which is also guaranteed to them under Article 21 of the Constitution of India have been denied to them is rejected by this Court as only misconceived and untenable in law.
For the reasons recorded above by me in the preceding paragraphs of this judgment, the impugned orders passed by the second respondent is contrary to the law laid down by the Apex Court and this Court in the cases cited supra and also in contravention of the provisions of the Karnataka Municipal Corporations Act, 1976, A(PCP) Act, 1981, Environment (Protection) Rules, 1986. Hence, the impugned orders are liable to be quashed. Therefore, the same are liable to be quashed. Hence, I pass the following order.-
Writ petition is allowed. Impugned orders are hereby quashed. Issue rule and made absolute. The first respondent is hereby directed to take suitable action on the basis of the order passed by the Deputy Health Officer-the Licensing Authority his order has been revived and take action as expeditiously as possible as contemplated under Section 461 of the Karnataka Municipal Corporations Act to close the factory.
After the order was dictated, the learned Counsel appearing on behalf of the respondents 4 to 6 files an oral application for staying the operative portion of this order for a period of four weeks as he has stated in pursuant to the impugned orders passed by the respondent 2, they have been running the factory since the writ petition is allowed, a proper direction is given to the first respondent, the contesting respondents are required to stop the running of the powerloom factory. Having regard to the facts of this case and the submission made on behalf of the learned Counsel for the petitioner and the contesting respondents operative portion of this judgment is stayed for a period of four weeks from today.