Nisarga Gowda Vs the State of Karnataka

SMT. NISARGA GOWDA AGED ABOUT 28 YEARS W/O HEMANTH KUMAR PROPRIETRIX M/S FILTER CAFE THE NEW BANGALORE CLUB NO.134, JANATHA COLONY, NEAR KENCHANAKUPPE GATE, BIDADI, RAMANAGAR TALUK, RAMANAGARA DISTRICT - 562 109.

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Digitally signed by VANAMALA N

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Location: HIGH COURT OF KARNATAKA

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…PETITIONER

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(BY SMT. LEKHA JAIN., ADVOCATE FOR SRI. SIDDHARTH SUMAN, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY LABOUT DEPARTMENT VIKAS SOUDHA, VIDHANA VEEDHI, BENGALURU - 560 001.

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THE DEPUTY COMMISSIONER AND DISTRICT MAGISTRATE

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HC-KAR

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RAMANAGARA DISTRICT RAMANAGARA - 562 109

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THE SUPERINTENDENT OF POLICE RAMANAGARA DISTRICT RAMANAGARA - 562 109

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…RESPONDENTS

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(BY SRI. V.SHIVAREDDY., AGA)

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THIS WP FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO a) ISSUE A WRIT OF CERTIORARI OR SUCH OTHER APPROPRIATE WRIT OR ORDERS OR DIRECTIONS, QUASHING/SETTING ASIDE THE ENDORSEMENT BEARING NO.RGK/MAG(1)/CR/41/2019-20 DATED 20.12.2019 ISSUED BY THE 2^ND RESPONDENT (i.e., ANNEXURE-E) AND ORDER BEARING NO.MAG/CR/54/2019-20 DATED 23.12.2019 ISSUED BY THE 2^ND RESPONDENT (i.e., ANNEXURE-F) AS ARBITRARY, ILLEGAL AND UNJUST IN SO FAR AS IT RELATES TO THE PETITIONER; b) ISSUE A WRIT OF MANDAMUS OR SUCH OTHER APPROPRIATE WRIT OR ORDERS OR DIRECTIONS, DIRECTING THE RESPONDENT NOS.2 & 3 TO PERMIT THE PETITIONER TO RUN THE ESTABLISHMENT M/S. FILTER CAFE, THE NEW BANGALORE CLUB NO.134, JANATHA COLONY, NEAR KENCHANAKUPPE GATE, BIDADI, RAMANAGARA TALUK, RAMANAGARA DISTRICT - 562 109 FOR 24 HOURS ON ALL DAYS AND NOT TO HARASS THE PETITIONER ON THIS SCORE; c) AWARD COSTS AND GRANT SUCH OTHER RELIEF AS THIS HON'BLE COURT DEEMS FIT AND EXPEDIENT IN THE CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN WP NO.4463/2020

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BETWEEN:

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M/S MELT IN CAFE BEING A PARTNERSHIP FIRM

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HC-KAR

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AT NO.44, MADAPURA GATE MAYAGANAHALLI NATIONAL HIGHWAY 275 RAMANAGARA TALUK, RAMANAGARA DISTRICT, PIN-562 128 REPTD BY ITS PARTNER MAHESH M.N

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MAHESH M N S/O NANJUNDAIAH AGED ABOUT 37 YEARS PARTNER, M/S MELT IN CAFE AT NO.44, MADAPURA GATE MAYAGANAHALLI, NATIONAL HIGHWAY - 275, RAMANAGARA TLAUK, RAMANAGARA DISTRICT, PIN-562 128

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PATIL KESHAV MOORTHI SHIVAPPA S/O SHIVAPPA AGED 36 YEARS PARTNER M/S MELT IN CAFE AT NO.44, MADAPURA GATE MAYAGANAHALLI, NATIONAL HIGHWAY- 275, RAMANGARA TLAUK RAMANAGAR ADISTRICT, PIN - 562 128

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...PETITIONERS

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(BY SRI. CHANDRASHEKAR C., ADVOCATE FOR SRI. B.V.MALLA REDDY, ADVOCATE)

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AND:

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GOVERNMENT OF KARNATAKA REPTD. BY THE PRINCIPAL SECRETARY DEPARTMENT OF HOME AFFAIRS VIDHANA SOUDHA BENGALURU - 560 001

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HC-KAR

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DEPUTY COMMISSIONER & DISTRICT MAGISTRATE RAMANAGARA DISTRICT RAMANAGARA, PIN - 562 129

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THE SUPERINTENDENT OF POLICE RAMANAGARA DISTRICT RAMANAGARA, PIN - 562 129

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...RESPONDENTS

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(BY SRI. V.SHIVA REDDY., AGA)

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THIS WP FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO a) ISSUE A WRIT OF CERTIORARI OR SUCH OTHER APPROPRIATE WRIT OR ORDERS OR DIRECTIONS, QUASHING / SETTING ASIDE THE ORDER VIDE NO.MAG/CR/54/2019-20, DATED 23.12.2019 BY RESPONDENT NO.2 (ANNEXURE-D) AS ARBITRARY, ILLEGAL AND UNJUST IN SO FAR AS IT RELATES TO THE PETITIONERS; b) ISSUE A WRIT OF MANDAMUS OR SUCH OTHER APPROPRIATE WRIT OR ORDERS OR DIRECTIONS, DIRECTING THE RESPONDENT NOS.2 AND 3 TO PERMIT THE PETITIONERS TO RUN THE ESTABLISHMENT M/S MET IN CAFE, AT NO.44, MANDAPURA GATE, MAYAGANAHALLI, NATIONAL HIGHWAY-275, RAMANAGARA TALUK, RAMANAGARA DISTRICT-562 128; c) PASS ANY SUCH OTHER ORDER OR DIRECTION, AS MAY BE DEEMED FIT IN THE CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY AND LAW.

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THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD

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ORAL ORDER

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These petitions are by those who have registered under the Food Safety and Standards Act, 2006, and they run either a Cafe or a Restaurant . The petitioner in the writ petition in W.P. No. 1112/2020 is issued with a license to run a Cafe under the trade name ' Filter Cafe' and the petitioner in the writ petition in W.P. No.4463/2020 is issued with a license to run a restaurant under the trade name ' Melt In Cafe' . In fact, the petitioner in the writ petition in W.P. No.44653/2020 in terms of this Court's order dated 26.11.2019 in its earlier writ petition in W.P. No.51171/2019, was running a Hookah Bar, but because this activity is regulated this petitioner now runs only a restaurant .

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The petitioners are aggrieved by the second respondent's order dated 23.12.2019 and the consequential Endorsement issued. The petitioner in the writ petition in W.P. No. 1112/2020 has

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produced this order dated 23.12.2019 as Annexure-F and the other petitioner has produced this order as Annexure-D . The second respondent has issued this order in exercise of the powers under the Karnataka Police Act, 1963 [for short 'the Police Act' ] calling upon all the commercial establishments to keep their doors shut between 11.01 p.m. and 05.59 a.m. Consequent to this order, though the petitioners can operate their cafe and restaurant until 11 o'clock in the evening, they must close thereafter to reopen only at 06.00 am the next day.

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The second respondent's decision as aforesaid is in the light of the data that is collected over five years prior to September 2019. The second respondent has observed that during this period, there has been an increase not only in the cases of extortion, thefts, murder and dacoity but also in fatal and non-fatal accidents. This Court has granted an interim order in each of these petitions observing that

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there is no instance of any untoward occurrence within the petitioners' premises. It is undisputed that the petitioners, with the advantage of this interim order, have continued to operate their businesses despite the restrictions in terms of the order dated 23.12.2019 and without the State Government moving an application for vacating such interim order.

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Ms. Lekha Jain, the learned counsel for the petitioner in the writ petition in W.P. No.1112/2020, and Mr. Chandrasekhar C, the learned counsel for the petitioner in the writ petition in W.P. No.4463/2020, canvass the following to support the petitioners' grievance with the impugned order dated 23.12.2019.

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[a] The petitioners' commercial establishments are not the reason for any increase in the incidents that are referred to as the reason for the order

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and there are no such occurrences in the respective places.

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[b] The State Government's policy has been to permit commercial establishments such as the establishments set up by the petitioners throughout the day and night but on terms.

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[c] The State Government has issued the Notification dated 27.09.2024 in exercise of its powers under the Karnataka Shops and Commercial Establishment Act, 1961 [for short,

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'the 1961 Act' ] permitting all shops and commercial establishments in the State [employing ten or more persons] to be open 24x7 on all days of the year for three years from the date of the publication of the Notification on conditions.

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[d] If this is the State policy, the second respondent cannot, in exercise the powers under the Police Act, restrict the petitioners from keeping their premises open.

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5. Sri V Shivareddy, the learned Additional

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Government Advocate, is heard in the light of the afore, and Sri V Shivareddy emphasizes that this Court may not interfere on the ground of jurisdiction with the impugned order because of the Notification issued in exercise of the powers under the 1961 Act or otherwise as Section 31 in Chapter IV of the Police Act confers powers in the Commissioner and the District Magistrate to make or alter or rescind orders [ which are not inconsistent with the Police Act ], amongst others, for ensuring that there is no obstruction, inconvenience, annoyance, risk, danger or damage to the residents of a particular vicinity or passengers going through a certain vicinity.

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This Court is of the view that the

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jurisdiction under Section 31 of the Police Act is not impaled by any exercise of jurisdiction under the provisions of the 1961 Act as these two enactments operate in different fields. The Commissioner/District

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Magistrate is empowered under Section 31 of the Police Act to take such measures as would be necessary for the different purposes enumerated regarding the areas under their charge, and this is to ensure that law and order is maintained. The petitioners, therefore, cannot succeed on the ground of jurisdiction based on the Notification issued in exercise of the powers under the 1961 Act. However, this Court's interference in the petitions must be examined in the light of the fact that the impugned order is issued in the year 2020.

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The petitioners have operated their

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respective Cafe and Restaurant in all these months and years without the respondents filing into this Court any cause for vacating or modifying the interim order. There is an elevated highway [ a point that is emphasized by the learned counsels for the petitioners ], and as such, the petitioners' premises are not even accessible to those who take this

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elevated highway. The State Government has continued the policy of permitting shops and commercial establishments to keep their enterprise open 24x7 on each day of the year, but on terms. In this Court's view, these are material circumstances to reconsider the decision to stop the petitioners from operating between 11.01 p.m. and 05.59 a.m. This Court is also of the view that the circumstances that have gone into the decision must be revisited in the light of the passage of time. Hence, the following:

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ORDER

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[a] The petitions are disposed of observing

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that the petitioners will be at liberty, subject to the required licenses and permissions, to operate their respective Cafe and Restaurant in terms of the Notification dated 27.09.2024 issued under the 1961 Act notwithstanding the second respondent's order dated 23.12.2019, but with liberty to the

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second respondent to revisit the decision in the light of the changed circumstances but after due

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information to the petitioners in the light of this Court's observation.

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[b] The consequential impugned Endorsement dated 20.12.2019 [ Annexure-E ] called in question in the writ petition in W.P. No.1112/2020 is quashed.

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SD/(B M SHYAM PRASAD) JUDGE

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AN/-

Nisarga Gowda v. the State of Karnataka

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Nisarga Gowda v. the State of Karnataka

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