Skip to content


D. Achaiah Setty Vs. the City of Bangalore Municipal Corporation, Bangalore by Its Commissioner - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 2935 of 1971
Judge
Reported inAIR1972Kant203; AIR1972Mys203; (1972)1MysLJ186
ActsCity of Bangalore Municipal Corporation Act, 1949 - Sections 248, 248A and 385(4)
AppellantD. Achaiah Setty
RespondentThe City of Bangalore Municipal Corporation, Bangalore by Its Commissioner
Appellant AdvocateG.R. Eitharajulu Naidu, Adv.
Respondent AdvocateS.V. Subramanyam, Adv.
DispositionPetition allowed
Excerpt:
.....carrying business of quarrying and selling rough granite situated at bangalore and two of defendants partners are also residents of bangalore held, no doubt courts at chitradurga where quarrying business was obtained had jurisdiction to try suit but in view of section 16(d), cpc read with proviso to section 16 and section 20, courts at bangalore also have jurisdiction to try the suit. - 6. we are not satisfied that any case of a mistake has or can be made out. the absence of any such power in the statute is also not a matter for surprise because in the light of article 19 of the constitution the validity of a licensing power is to be equated to the reasonableness of the restraint sought to be imposed thereby on the fundamental right to own, acquire and enjoy and dispose of..........capable of being withdrawn or cancelled for the reason that there is no provision anywhere in the statute empowering such withdrawal or cancellation.4. that there is no specific provision of the statute empowering a withdrawal of the licence of the nature concerned in this case is not disputed nor is disputable. there is power for cancellation in the event of any breach of any of the conditions of the licence vide sub-section (4) of section 385 of the act. there is under section 248, power to refuse a licence for reasons which are set out therein, which exclude the power to refuse a licence on any other grounds. under section 248-a a special power is conferred on the commissioner to refuse permission to construct a building on the ground that the site on which the building is proposed.....
Judgment:
ORDER

1. The petitioner was granted a licence by the Commissioner of the Municipal Corporation of the City of Bangalore for constructing a building at the junction of two roads one of which abuts the area called Patcl Circle. The petitioner on the strength of the licence commenced construction work. When the work had progressed to a considerable extent he was served with an order of the Commissioner of the Corporation dated 27th October 1971, stating that the licence already granted to him is withdrawn and directing that further construction should be stopped.

2. The petitioner assails the validity of the said order.

3. The main contention raised by the petitioner is that once a licence is issued under the City of Bangalore Municipal Corporation Act it is not capable of being withdrawn or cancelled for the reason that there is no provision anywhere in the statute empowering such withdrawal or cancellation.

4. That there is no specific provision of the statute empowering a withdrawal of the licence of the nature concerned in this case is not disputed nor is disputable. There is power for cancellation in the event of any breach of any of the conditions of the licence vide Sub-section (4) of Section 385 of the Act. There is under Section 248, power to refuse a licence for reasons which are set out therein, which exclude the power to refuse a licence on any other grounds. Under Section 248-A a special power is conferred on the Commissioner to refuse permission to construct a building on the ground that the site on which the building is proposed to be constructed is proposed to be acquired for public purposes subject to the proviso that such refusal shall cease to operate after a period of six months from the date of communication of the refusal.

5. It is the case of the Commissioner in the Commissioner's affidavit filed in the petition, that even at the time licence was originally issued in March 1971 there was a proposal to acquire a portion of the site, on which the petitioner is constructing a building pursuant to the licence, for the purpose of widening the Patel Circle and specified length of the road leading thereto for the purpose of relieving congestion in the vehicular traffic. The Commissioner's affidavit further states that Standing Committee (Town Planning and Improvements) also accepted the proposals and that the same are now awaiting approval by the Corporation itself. The further case suggested on the strength of these circumstances is that the original issue of a licence was 'evidently by inadvertence or by mistake'. It is in such circumstances according to the Commissioner that he issued the impugned order of withdrawal taking the view that he did have the power under the law to do so.

6. We are not satisfied that any case of a mistake has or can be made out. The Commissioner himself who deposed to the affidavit says what we have extracted above viz., that licence was issued evidently by inadvertence or by mistake. He does not even say positively that he committed any mistake relating to issue of the licence.

7. Even otherwise, the question has to be examined on the basis of the source of the power, if any, for withdrawing the licence as attempted to be done in this case.

8. In tracing the said source one has to look into only the provisions of the City of Bangalore Municipal Corporation Act which is the statute which governs the Corporation and its activities and powers and activities of its officers.

9. As already pointed out by us, there is no provision in the statute, or any power expressly conferred on the Commissioner or even on the Corporation to withdraw a licence already issued. The absence of any such power in the statute is also not a matter for surprise because in the light of Article 19 of the Constitution the validity of a licensing power is to be equated to the reasonableness of the restraint sought to be imposed thereby on the fundamental right to own, acquire and enjoy and dispose of property. To grant a licence and then to withdraw it would be unreasonable unless the power to do so is expressly conferred in public interest and subject to conditions which would make its exercise reasonable.

10. Whatever may be the justification or explanation which may be made out either on principles of general jurisprudence or of Constitutional Law there is no doubt whatever that the statute is totally silent about any power which could be exercised by the Commissioner of the Corporation to withdraw or cancel a licence to put up a building already issued to a person like the petitioner.

11. The impugned order of the Commissioner of the Corporation bearing No. A5. BG 2. 390/71-72 dated 27th October 1971, is therefore quashed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //