On 31st December (Sunday), the vacation bench of Karnataka High Court directed Bengaluru Police not to take any precipitative action against the Phoenix Mall of Asia till the matter is resolved amicably or further orders from the court. This came after the police ordered the mall to remain shut for the next 15 days due to the massive traffic congestion caused by a large number of people visiting the mall. The next hearing in this matter is on 2nd January.
Mall of Asia in Bengaluru gets High Court protection against shut down order #mallofasia https://t.co/AmXIxrM808
— Bar & Bench (@barandbench) December 31, 2023
Justice M.G.S. Kamal passed the order after the Mall voluntarily gave assurance that it would not operate for a day on 31st December. The urgent petition has been filed by Sparkle One Mall Developers Pvt Ltd, which manages the Phoenix Mall of Asia. It is situated on the service road in Byatarayanapura on Bellary Road, leading to the international airport.
The Court observed, “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 Sparkle One Mall developers had challenged the legality of the order passed by the Bangalore City Police Commissioner on 30th December in which it directed the petitioner to “restrict public access to the mall between 10 pm on 31st December 2023 and midnight of 15th January 2024 to prevent annoyance and disturbance to public tranquillity and provide a safe environment for traffic and public at large”.
Notably, the Commissioner had passed the Prohibitory Order under Section 144 of the Criminal Procedure Code (CrPC). The High Court heard the urgent plea at noon on Sunday for about half an hour in which both sides presented their arguments.
On behalf of the petitioner company, Senior Advocate Dhyan Chinnappa contended that the prohibitory order is unconstitutional. He argued that the orders amounted to closing down the mall and the businesses of shops in the mall. He also contended that invoking Section 144 of the CrPC is illegal as the circumstance does not contain any ingredient for invoking a prohibitory order.
During the proceedings, the A-G argued that it was for the petitioner to figure out 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.
After presenting their arguments, the Court proposed that both parties attempt to find a mutually agreeable solution. The hearing was adjourned for approximately 20 minutes to allow for a consultation between them.
When the court reassembled at around 12.50 pm, the petitioner’s counsel gave assurance that the petitioner company would voluntarily close the mall for a day on 31st December (Sunday) to show its bona fide commitment to addressing the issue of traffic congestion.
He urged the court to allow the petitioner to use the mall from January 1, 2024, until a mutual resolution between the petitioner and the police could be reached. This would be for the benefit of the public, taking into consideration all concerns raised by the police, or until the court thoroughly heard the petition.
However, he requested the court to clarify the effect of the prohibitory order given A-G’s claims. In reply, the Attorney General stated that the proposal presented by the petitioner warrants consideration. This is because the petitioner has voluntarily offered to shut down the mall for a day, and the police are willing to provide all necessary cooperation to achieve a mutually agreeable resolution of the matter.
Meanwhile, the petition alleged 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 petition further pointed out that the police did not respond to the petitioner’s suggestions made in October on traffic management.
It is claimed that the prohibitory order was issued as the traffic congestion caused by vehicles gathering on the road waiting to enter the mall, had affected the movement of ambulances, BMTC, and school buses.
The police had reportedly received complaints about these issues from various quarters. The prohibitory order stated, “If the matter is left unattended, there will be uproar and frequent disputes, and significant chances of cognizable offences in the near future,” pointing out that there would be more chances of traffic congestion due to New Year and Makara Sankranti celebrations.
The Bengaluru Police issued the orders to restrict public access to Phoenix Mall of Asia from 31 December to 15 January after massive traffic chaos on Christmas eve on the Bellari Road (Airport Road), with crowds thronging Phoenix Mall of Asia near Yelahanka. Police had to issue an advisory after this. After the police found that the parking facility in the mall is not adequate, the restriction order was issued. The order had said, “An emergency measure is imminently necessary to prevent annoyance, obstruction, offenses, and disturbance of public tranquility that may occur during New Year celebrations tomorrow (December 31) and to maintain public peace and order in the days that follow”.
Giving the reasons for issuing the orders, the Bengaluru City Police Commissioner B Dayananda said, “There are incidents of disruption of public peace and order every day, making it difficult to maintain peace and order. In the coming days, there is a significant possibility of traffic congestion, disruption, noise pollution, disturbance to the public, and peace disturbance in the surrounding areas. This applies especially to the occasions of New Year celebration on December 31, the second Saturday on January 13, 2024 and Sunday on January 14, 2024 when the Makara Sankranti festival is celebrated. Larger crowds visiting the mall during these times will lead to more inconvenience and disturbance to the public than before.”
The police officer said that as per the report of the Joint commissioner of police (traffic), there is a need to provide parking space for at least 10,000 cars and 10,000 two-wheelers in the ‘Phoenix Mall of Asia’ building. But the mall has only two basements to park 2,324 cars and two-wheelers.
Apart from the order to virtually shut down the mall for 15 days, the traffic police have also asked the Bruhat Bengaluru Mahanagara Palike (BBMP) to withdraw or cancel the partial Occupancy Certificate (OC) issued to the mall. According to the partial OC issued by BBMP, the mall is a 12-storey building including 2 basement floors with a total area of 86,421 square meters from the ground floor to the third floor. However, the mall has only two basements to park 2,324 cars and two-wheelers.
