The High Court of Karnataka, in a special hearing held on Sunday, said that prohibitory order imposed by Bangalore City Police Commissioner for “restricting public access to Phoenix Mall of Asia” shall neither be treated as an order completely prohibiting or preventing using of the mall for its business purposes nor completely prohibiting and preventing the public from having access to it.
A vacation bench of Justice M.G.S. Kamal passed the order on a petition filed by Sparkle One Mall Developers Pvt Ltd, which manages the Phoenix Mall of Asia, situated on the service road in Byatarayanapura on Bellary Road, leading to the international airport.
The Court also made it clear that the police should not take any precipitative action against the mall till the matter is resolved amicably or further orders passed by court during the next date of hearing, January 2.
“Needless to note that any order passed by the executive should be capable of its effective implementation in its letter and spirit. If it carries any ambiguity or is incapable of implementation such order per se becomes unsustainable,” the Court observed.
The petitioner-company had questioned the legality of the order passed by the Bangalore City Police Commissioner on December 30 directing the petitioner to “restrict public access to the mall between 10 pm on December 31, 2023 and midnight of January 15, 2024 to prevent annoyance and disturbance to public tranquillity and provide safe environment for traffic and public at large”. The Commissioner had passed the Prohibitory Order under Section 144 of the Criminal Procedure Code.
Arguments on behalf of mall
The Court took up the matter on an urgency plea at noon on Sunday and heard the preliminary arguments of both sides for about half-an-hour.
Appearing for the petitioner-company Senior Advocate Dhyan Chinnappa contended that prohibitory order is unconstitutional as it amounts to closing down the mall and the businesses of shops in the mall. It was also contended that invoking of Section 144 of the Cr.P.C is illegal as the circumstance does not contain any ingredient for invoking prohibitory order.
A-G’s claim
Also, the A-G has said that it is for the petitioner to think on how to implement the prohibitory order issued for “only restricting the entry of public” into the mall and not entirely prohibiting the entry of public into the mall.
Following these arguments, the Court suggested both the parties try to explore some mutually agreeable solution and adjourned the hearing for about 20 minutes to enable them to hold consultation.
Voluntarily closing for a day
When the court reassembled around 12.50 pm, Mr. Chinnappa said the petitioner-company would voluntarily close the mall for a day on December 31 (Sunday) to show its bona fide towards its commitment to solve the issue of traffic congestion.
Mr. Chinnappa also said that the petitioner be permitted to use the mall from January 1, 2024 until a mutual resolution of the issue was arrived at between the petitioner and the police for the benefit of the public keeping in view of all the concerns expressed by the police police, or till court heard the petition in detail. However, Mr. Chinnappa requested the court to clarify the effect of the prohibitory order in view of A-G’s claims.
In response to this, the A-G said that the offer made on behalf of the petitioner deserves consideration since the petitioner has voluntarily come forward to close down the mall for a day, and the police would extend all necessary cooperation in arriving at amicable resolution of the matter.
“Police caused disruption”
Meanwhile, in the petition it has been alleged in the petition that “CCTV footage has disclosed that traffic disruption caused by vehicles was not due to the petitioner but was mainly owing to the fact that the vehicle entry was blocked by the police resulting in a jam outside the mall.” The police have not not responded to petitioner’s suggestions made in October on traffic management, it was pointed out in the petition.
Background
The prohibitory order was issued as the traffic congestion, caused to vehicles piled up on road waiting to enter the mall, had affected plying of ambulances, BMTC and school buses, and the police had received complaints in these issues from various quarters.
“If the matter is left unattended, there will be uproar and frequent disputes, and significant chances of cognizable offences in the near future,” the prohibitory order stated while pointing out more chances of traffic congestion due to new year and Makara Sankranti celebrations.
