ORDER
K.A. Swami, J.
1. In these Petitions under Article 226 of the Constitution, the petitioner has sought for quashing the Notices dated 24-12-1979 bearing No. HLT/LCN/KMC/3326 (produced as Annexure-A in W.P. 10916/81) ; and dated 29th December, 1979 bearing No. HLT/LCN./K M C/3341 (produced as Annexure-A in W.P. 10878/81). He has also sought for issue of a direction to the respondent to renew Poha and Putani Bhatti licences in his favour. According to the case of the petitioner, he has been running Poha Bhatti and Putani Bhatti at No. 876 and 977 respectively, at Kalaigar Galli, Belgaum, for the last several years ; that the respondent, by the impugned notices, has informed him that his requests for renewal of the licences are rejected ; and he shall take back the licence fee credited by him and stop trade activities within three days and report the same.
2. The fact that the petitioner has been operating Poha and Putani Bhattis for the last several years before the impugned action is taken, is not disputed. The action is taken against the petitioner on the ground that there are complaints from the neighbours and residents of the area in question that nuisance is caused, by reason of operation of Poha and Putani Bhattis. In the case of nuisance arising out of the functioning of the factory, workshop or workplace in which steam-power, water-power or other mechanical or electric power is used in the Corporation area, Chapter XVII of the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as the ‘Act’) becomes relevant.
3. Chapter XVII of the Act, deals with licences and fees and other matters connected therewith. Sections 355 to 360 of the Act, deal with the nuisance caused by employing steam or other power, abatement of nuisance and discontinuation of the use of such factory or place from which nuisance is created. Section 355 of the Act, specifically provides that if, in any factory, workshop or work-place in which steam-power, water-power or other mechanical power or electric power is used, and in the opinion of the Commissioner, nuisance is caused by the particular kind of fuel used or by the noise or vibration created, he is empowered to issue such directions as he thinks fit for abatement of the nuisance within a reasonable time to be specified for the purpose. If the concerned person defaults in carrying out the directions or if the abatement is found impracticable, the Commissioner is further empowered to prohibit, the use of particular kind of fuel or prohibit the working of the factory, workshop or work-place altogether until such directions issued for abatement of nuisance are carried out ; or fix the hours of working of the factory, workshop or work-place. Section 358 of the Act empowers the Commissioner to direct the owner or occupier of the factory, workshop or work-place or any building or place to discontinue the use of such factory, workshop or work-place or any building or any place, if by reason of use of steam, water or other, mechanical or electric power, noise, gas, vapour, smoke, vibration, dust or other impurity is or is likely to be generated in the course of the work carried on in such place and thereby causing nuisance or danger to the life, health or property of persons in the neighbourhood. No doubt, Sections 355 and 358 of the Act do not provide for issuing notice to show cause to the concerned person holding an enquiry and affording an opportunity of hearing to the concerned person. The orders passed under these two Sections seriously affect the rights and interests of the owner or occupier of, or the person interested in, the factory, workshop or work-place. It is but necessary that such person should be afforded an opportunity of showing cause and of hearing before passing any order either under Section 355 or Section 358 of the Act. In this case, we are not concerned with Sections 356 and 357 of the Act.
4. In the instant case, no notice to show cause is issued to the petitioner. No enquiry is held. He is also not heard in the matter. Before the operation of Poha and Putani Bhattis are directed to be closed or shifted to another place, the Commissioner after holding an enquiry, has to first decide whether the nuisance is caused by reason of the working of the Poha and Putani Bhattis in question. In the event he is of the opinion that nuisance is caused, be has to find out whether on adopting certain measures it is possible to cause abatement of the nuisance and issue directions for that purpose, in the event it is found that even on adopting certain measures, there is no abatement of the nuisance, he has to take extreme step of directing the closure of Poha and Putani Bhattis or shifting of the same to some other place. The Commissioner has straightaway directed the petitioner to stop the Bhattis in question, even though the petitioner has been operating the same for the last several years. The Commissioner has not followed the procedure laid down in Sections 355 and 358 of the Act.
5. However, it is contended on behalf of the respondent that the petitioner himself has come forward with an answer pursuant to the notice dated 18-1-1979 produced as Annexure-B seeking time to shift the factories to other places; therefore, he has accepted the fact that the existence and operation of the Poha and Putani Bhattis cause nuisance to the persons residing and the property situated in the neighbourhood; therefore the same have to be shifted. No doubt, in the representation dated 28-1-1980 produced as Annexure-D, the petitioner has sought for time for shifting the Bhattis in question to other places. Any licensee placed under the circumstances under which the petitioner was placed, could do nothing more than seeking time to vacate because there was a direction to stop the trade. When the respondent has failed to comply with the requirements of the Statute and failed to hold an enquiry and decide as to whether the operation of the two Bhattis in question results in causing nuisance, it cannot be allowed to take refuge under such representation made by the petitioner as it occupies dominant position in relation to the licensee. It cannot be allowed to take advantage out of its own illegal act and rely upon the representation made by the licensee.
6. It was possible to accept the contention and dismiss the Writ Petitions provided the Commissioner had held an enquiry in accordance with law and decided the matter. As no such enquiry is held and straightaway notices are issued to stop the functioning of the Bhattis and to remove them, it is neither just nor appropriate to deny relief to the petitioner on the ground that he himself has sought for time under Annexure-D for vacating the place.
7. For the reasons stated above, these Writ Petitions are allowed. The notices dated 24th December, 1979 bearing No. HLT. LCN KMC. 3326 and 29th December 1979 bearing No. HLT. LCN KMC. 3341 issued by the respondent, are hereby quashed. Without prejudice to the right of the respondent to take action in the matter in accordance with the provisions contained in Chapter XVII of the Act and in accordance with the observations made in this order, the respondent is directed to renew the licences of the petitioner subject to the result of the action that may be taken under Chapter XVII of the Act, on payment of the necessary renewal fee and on complying with other requirements if any, by the petitioner.