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Judgment
By this writ petition, the petitioner has sought the issuance of writ of certiorari for quashing the Order dated 7-10-1993 on Subject No. 3(65) vide Annexure-D.
The facts of the case in brief are that the 4th respondent applied for licence to run a plastic industry with 10 H.P. in House No. 4:2:24, I Main, ''A'' Street, Hosaguddadahalli, Mysore Road, Bangalore District and notices were issued by 3rd respondent to the residents of the locality. The notice having been served, certain objections have been filed and the petitioner has also filed the objections with the allegations to the effect that the locality is a residential one and further that it will not be conducive to proper from the point of view of environment and of health that licence for running plastic industries be granted to 4th respondent. It was also stated that there is a school in the vicinity of the property, where industry was sought to be started and this may be hazardous.
Anyway, after considering the objections and hearing the parties, respondent No. 3 rejected the permission sought for running the plastic industry.
Having felt aggrieved from the order of the respondent No. 3, that is, Medical Officer of Health, Bangalore City Corporation, Bangalore, the respondent No. 4, preferred an appeal before the Standing Committee. The Standing Committee by its order and resolution dated 7-10-1993, vide Annexure-D, set aside the order passed by the respondent No. 3 and thereafter, granted licence to respondent No. 4, to run the plastic industry in the building in dispute. That having felt aggrieved thereform, the petitioner has filed this writ petition under Article 226 of the Constitution of India.
On behalf of respondent No. 4, a statement of objections supported by an affidavit of one Rukmini Bai, has been filed today. It has been taken on record. No counter affidavit has been filed on behalf of the respondents 1, 2 and 3.
The learned counsel for the petitioner made a number of contentions, but, the present writ petition can be disposed of on the main contention raised by him. I have heard the petitioner''s counsel Sri Vinod Prasad, as well as Sri Shekarshetty, counsel for respondent No. 4, the main contesting party.
The learned counsel for the petitioner has submitted that the appellate authority has granted the permission and reversed the orders of respondent No. 3, while allowing the appeal, without giving opportunity of hearing to the petitioner, who has been one of the objectors before respondent No. 3 and adversely affected by the appellate order which has been passed in his absence.
In paragraph 5 of the writ petition, it has been stated as under:
"The 4th respondent being aggrieved by the said order, preferred an appeal to the 2nd respondent and 2nd respondent without giving any opportunity to the objectors, (petitioners) and overlooking the Zonal Regulation, reversed the order of the 3rd respondent."
In paragraph 9 of the writ petition, the grounds of the writ petition, it has further been stated as under:
"That 2nd respondent, (wrongly typed as 3rd respondent) before passing the order, should have heard the objectors after giving them an opportunity to put forward their case. But, in the present case the second respondent has not given any opportunity to the petitioner and others to put forward their case and hence the said order is violative of rules of natural justice and as such the same is liable to be set aside."
It has further been stated in paragraph 10 that the order of 2nd respondent is not a speaking order and so, it is liable to be set aside. The learned counsel for the petitioner placed much emphasis on this aspect of the matter and submitted that the appellate order passed by respondent No. 2, dated 7-10-1993, that is, Annexure-D to this writ petition is illegal, null and void as it has been passed without giving opportunity of hearing to the petitioner. As regard these allegations of paragraphs 5 and 9, there appears to be nothing in the counter-affidavit which may prove or indicate otherwise nor have the allegations made in paragraphs 5 and 9 of the writ petition been denied in the counter affidavit filed by respondent 4, in whose favour the appellate order has been passed by respondent No. 3. It is tit principle of law that if allegations are made in affidavit and the said allegations are not controverted by the other side by filing the counter affidavit, the same has got to be accepted as admitted and correct. For this view, which I am taking, I find support from the Division Bench decisions of Allahabad High Court in the case of Juggilal Kamla Pat v Ram Janki Gupta and Another, AIR 1962 All. 407, as well another decision of Allahabad High Court in the case of Surendra Tiwari v State of Uttar Pradesh, 1994 All. L. J. P. 547, and also from that of Hon''ble Supreme Court in the case of Naseem Bano v State of Uttar Pradesh and Others, AIR 1993 SC 2592.
In the case of Naseem Bano (supra), the law in this regard has been laid down as under:
"Since no dispute was raised on behalf of respondent Nos. 1 to 4 in their reply to the averments made by appellant in the writ petition that 40% of total number of posts had not been filled by promotion, inasmuch as the said averments had not been controverted the High Court should have proceeded on the basis that the said averments had been admitted by respondents."
(emphasis supplied)
In Juggilal''s case supra, Allahabad High Court has laid down the law as under:-
"We do not think it is open to a party to brush aside the averments of his opponent as merely stating that the allegations are untrue. A statement on oath, whether true or false has to be met by a counter affidavit in reply or by challenging the statement by cross-examination. If that is not done, it would be presumed that the allegations, if untrue would have rebutted by the other side."
That after having referred to the decision of Mehta Parikh and Co. v Commissioner of Income-tax, Bombay, AIR 1956 SC 554, the Division Bench further held as under:
"Here also the court below had before it a duly sworn affidavit of the pairokar of the plaintiff in support of his application and there was no counter affidavit in traverse of the allegations contained in that affidavit. Under the circumstances it was not open to the court to disbelieve the version of the plaintiff that he had brought witnesses in court on 24-5-1956 shortly after the dismissal of adjournment application."
(emphasis supplied)
In this view of the matter, I am of the opinion that the order contained in Annexure-D, dated 7-10-1993 passed by the appellate authority-2nd respondent is illegal and void ab initio on account of its having been passed after committing breach and violation of the principles of natural justice and fair play. As such, the order of the appellate authority deserves to be quashed. Having thus considered, I allow this writ petition.
Issue a writ of certiorari quashing the above mentioned order dated 7-10-1993, passed by 2nd respondent contained in Annexure-D. Issue a writ of mandamus or direction in the nature of writ or mandamus to respondent No. 2, to consider and decide the appeal filed by respondent No. 4 according to law and after giving opportunity of hearing to the petitioner as well as to the other objectors, who had filed the objections against the grant of permission or they are contesting the application made by respondent No. 4, for licence or permit to run the plastic industry and to dispose of the appeal on merits after giving a reasoned order within a period of not more than 6 months from today.