Bengaluru ADM's Order To 'Restrict Public Access' To Phoenix Mall Of Asia Does Not Completely Prohibit Use Of Mall For Business Purposes: Karnataka HC

The Karnataka High Court clarified that the Bengaluru Additional District Magistrate's order to "restrict the public access to the Phoenix Mall of Asia" shall not be read as an order completely prohibiting the usage of mall for business purposes and preventing public from having access.

The Court was dealing with an urgent matter with regard to the order passed by the Commissioner and Additional District Magistrate, Bengaluru by which Sparkle One Mall Developers Ltd. (company) was directed to “restrict public access” to the Phoenix Mall of Asia, Bengaluru between December 31, 2023 to January 15, 2024.

A Single Bench of Justice M.G.S. Kamal said, “In that view of the matter what is required to be clarified at this juncture is that the impugned order which reads "restrict the public access to the Phoenix Mall of Asia" shall not be read as an Order completely prohibiting or preventing the petitioner from using the mall for its business purposes and shall also not be read as completely prohibiting and preventing the public from having access thereto.”

The Bench added that any order passed by the executive should be capable of its effective implementation in its letter and spirit and if the same carries any ambiguity or is incapable of implementation, it becomes unsustainable.

Senior Advocate Dhyan Chinnappa appeared for the petitioner while Advocate General Shashikiran Shetty and Additional Advocate General Vikram Huilgol appeared for the respondents.

In this case, the petitioner company having constructed a premium mall was operating the same in the name and style of PHOENIX MALL OF ASIA in Bengaluru and the said mall was put into operation on and from October 27, 2023. However, certain causes and concerns were expressed by the State more particularly by the police resulting in issuance of notice seeking information on the precautionary steps taken by the company. The important information sought therein amongst others were with respect to parking facilities and regulation of traffics. A response was issued by the company providing information with regard to the facilities provided at its end to handle and take care of the situation.

The police on gathering information available on public domain and through its intelligence sources, passed the impugned order in purported exercise of its power under Section 144 of the Criminal Procedure Code (CrPC). The perusal of the order revealed that on and from the date of operation of the mall, there was certain grave concern of inconvenience in the nature of traffic congestion, noise pollution, etc. to the daily lives of the population situated in the surrounding location. It was also pointed out that the mall was situated on a highway which was connecting to the various public amenities and also resulting in undue congestion of the public area. The situation got worse on December 24, 2023 on the eve of Christmas further resulting in certain disorder.

The High Court in the above context of the case observed, “After hearing learned counsel initially this Court was at the view that the matter could be resolved with the joint deliberations of the petitioner as well as the respondent-Police authorities as both are the stake holders of the matter and their decision would impact the public at large. … In that light of the matter, learned senior counsel appearing for the petitioner submits that discussion and deliberation in this regard would be undertaken between the petitioner and the respondent-authorities.”

The Court said that in the meanwhile since the order in the nature of prohibiting the petitioner from using the mall between December 31 to January 15, the same requires clarification by it to avoid any eventuality.

“… learned AG fairly submits that the offer made on behalf of the petitioner deserves consideration since the petitioner itself has voluntarily come forward to close down the mall for a day, the respondent-Police would extend all necessary cooperation in arriving at amicable resolution of the matter”, further noted the Court.

Hence, the Court took the undertaking of the petition of not opening the mall for a day i.e., December 31 as a token of its bonafide intent in resolving the matter. It, therefore, directed the parties to explore the possibilities at the earliest and suggested to meet at the office of the Police Commissioner and submit the outcome of the meeting, if any, before the court on January 2, 2024.

“… no precipitative action be taken by the respondent-Police till matter is resolved amicably or further orders passed by this Court till the next date of hearing”, concluded the Court.

Accordingly, the High Court listed the matter on January 2.

Cause Title- Sparkle One Mall Developers Ltd. v. The State of Karnataka and Others

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