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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF JULY 2014
PRESENT
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE B.MANOHAR
WP No.14000/2008 (GM-POL-PIL)
BETWEEN:
1. U.K.District Consumers &
Citizen Welfare Association,
R/b.its President,
Sri.K.R.Desai, Advocate & Notary,
Age 51 years,
S/o.R.U.Desai,
R/a.Sadashivgad,
Karwar- 581 301.
Uttara Kannada District.
2. The Fundamental Facilities &
Anti-Corruption Awarness Society,
Karwar,
R/b. by its President,
Sri.Vishwamber.K.Talekar,
Age 65 years,
S/o.Komarse Talekar,
R/a.Main Road,
Karwar - 581 301.
Uttara Kannada District.
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3. Karnataka Sanvarakshana Sangh,
R/b.its President,
Mr.Prabhakar Mhalsekar,
Age 60 years, s/o.Sairu Mahasekar,
Mhalsa Road,
Kajubag,
Karwar - 581 301.
Uttara Kannada District.
4. Mr.Vijay Kumar.G.Patil,
Age 67 years,
S/o.Ganesh Patil,
Social Worker,
Aligadda, Baithol,
Karwar - 581 301.
Uttara Kannada District.
5. Binga Citizen Forum,
R/b.Honourary Secretary,
Mr.Vishnu Harikantra,
Age 54 years,
Occ: Fisherman,
Aligadda, Baithol,
Karwar - 581 301.
Uttara Kannada District.
6. Sri.M.K.Pandrekar,
Age 52 years, S/o.Khema Pandrekar,
Social Worker,
Kodibag,
Karwar - 581 303.
Uttara Kannada District.
7. Mr.Datta Govind Vetalkar,
Age 52 years,
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S/o.Govind Vetallor,
Social Worker,
Occ: Fisherman,
Belekeri, Ankola,
Uttara Kannada District.
8. Dr.M.M.Sayed,
Age 65 years, S/o.Khedar Basha,
Belekeri, Ankola,
Uttara Kannada District.
9. Mr.Ashok Pednekar,
Age 54 years, S/o.Budya Pednekar,
Social Worker,
Belekerei, Ankola,
Uttara Kannada District.
10. Sri.V.K.Nayak,
Age 75 years, S/o.Krishna Nayak,
Binga Village,
Karwar- 581 301.
Uttara Kannada District. ...PETITIONERS
(By Sri.Prasad.A.Pednekar, Adv., for P1, P6 & P9;
Sri.Harish Bhandary, Adv., as Amicus Curiae;
Smt.Sujatha, AGA for R1)
AND:
1. State of Karnataka,
Rep. by its Chief Secretary,
Department of Ecology,
Environment & Forests,
Vidhana Soudha,
Dr.Ambedkar Veedhi,
Bangalore - 01.
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2. Karnataka State Environment
Pollution Control Board,
Rep. by its Secretary,
M.G.Road,
Bangalore.
3. Union of India,
Ministry of Environment & Forests,
Dept. Of Environment,
Forests & Wildlife,
New Delhi.
4. Deputy Commissioner and
District Magistrate,
Uttara Kannada District,
Karwar - 581 301.
5. The Adhyaksha,
Zilla Panchayat,
Uttara Kannada District,
Karwar Taluk,
Karwar - 581 301.
6. The Adyaksha,
Taluk Panchayat,
Ankola Taluk,
Ankola - 581 115.
Uttara Kannada District.
7. Regional Transport Officer,
Karwar - 581 301.
Uttara Kannada District.
8. Executive Engineer.,
National Highway,
Karwar - 581 301.
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Uttara Kannada District.
9. Regional Officer,
KSPCB,
Karwar - 581 301.
Uttara Kannada District.
10. Deputy Director,
Department of Mines & Geology,
Karwar - 581 301.
Uttara Kannada District.
11. Director of Ports,
I.W.T.Karwar - 581 301.
Uttara Kannada District.
12. The Port Officer,
Karwar,
Uttara Kannada District.
13. Balekeri Grama Panchayat,
Balekeri, Ankola Taluk,
Ankola,
Uttara Kannada District.
14. The Superintendent of Police,
Karwar - 581 301.
Uttara Kannada District.
15. M/s.Alvares & Thomas Stevarders,
Fowarders & Customs House Agent,
Old Port Office, Baithkol,
Karwar - 581 301.
R/b.Mr.Gabried Sydney Manager,
Karwar Office,
Karwar - 581 301.
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Uttara Kannada District.
16. M/s.J.M.Baxi & Co.,
Shopping Agents & Stevarders,
Shri.Datta Prasad Complex,
Ground Floor, Dr.Pikle Road,
Karwar - 581 301.
Uttara Kannada District.
17. M/s.Dream Logistics
Company (India) Pvt. Ltd.,
Transporters, Handling
Contractors & Exporters,
Opp: Karwar Port Gate,
Baithkol,
Karwar - 581 301.
Uttara Kannada District.
18. M/s.Muneer Enterprises,
Aligadda, Baithkol,
Uttara Kannada District.
R/b.Mr.Musheer Ahmed,
Manager,
Karwar Branch.
19. M/s.VSL Minig Company,
Aligadda, Baithkol,
Karwar - 581 301.
Uttara Kannada District.
20. M/s.Core Minerals,
Aligadda, Baithkola,
Karwar - 581 301.
Uttara Kannada District.
R/b.Ms.Jayashree,
Manager,
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Karwar Branch.
21. M/s.Suvan Logistics Company
Shipping & Clearing Agents,
Mahimangalam Complex,
Sai Mandir Road,
Karwar - 581 301.
Uttara Kannada District.
R/b.Ms.Pradeep Hulgekar,
Manager,
Karwar Branch.
22. M/s.M.S.P.L.
C/o.Port Officer,
Baithkol,
Karwar - 581 301.
Uttara Kannada District.
23. M/s.Kikra Logistics,
C/o.Port Officer,
Karwar - 581 301.
Uttara Kannada District.
24. M/s.Adani Enterprises Ltd.,
Belekeri Port,
Ankola,
Uttara Kannada District.
25. M/s.Mallikarjun Shipping (P) Ltd.
Belekeri Post,
Ankola,
Uttara Kannada District.
26. M/s.Salgaonkar Mining Industries Ltd.,
Belekeri Post,
Ankola,
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Uttara Kannada District.
27. M/s.Rajmahal Silks,
Belekeri Port,
Ankola,
Uttara Kannada District.
28. Under Secretary,
Government of Karnataka,
Mines, Commerce &
Industries Department,
Vidhana Soudha,
Dr.Ambedkar Veedhi,
Bangalore - 01.
29. The Commissioner for Mines &
Geological Resources,
Mines & Geology Department,
Khanija Bhavan,
Devaraj Urs Road,
Bangalore - 560 001.
30. National Highways Authority of India,
Ministry of Shipping,
Road Transport & Highways,
Rep. by its Secretary,
G 5 & 6, Sector - 10.
Dwarka,
New Delhi - 110075. ...RESPONDENTS
(As per Order dated 17.6.10 petition against
Respondent Nos.19, 20 & 23 are dismissed)
(By Sri.Gururaj Joshi, Adv., for R2;
Sri.Jagadish Chandra Hulsoor, Adv., for R3;
R4 Served;
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Sri.Ashok.N.Nayak, Adv., for R5;
R6, R7, R8, R9, R10, R11, R12, R13 & R14 are served;
Sri.Dayanand.S.Naik, Adv., for R15 to R18, R21 & 27;
R19, 20 & 23 are deleted vide court dated 17.6.2010;
Sri.K.Shashikiran Shetty, Adv., for R22;
Sri.B.Pramod, Adv., for R24;
Smt.Akka Mahadevi Hiremath, Adv., for R25;
Sri.Basava Prabhu.S.Patil, Assts., for R26;
R28, 29 are Served;
Singhania & Partners, Adv., for R30)
******
This writ petition is filed under Articles 226 and 227 of
the Constitution of India praying to direct the respondent
No.11 and 12 not to permit the respondents 15 to 27 or
others to stack and transport the iron and manganese ore
within the territory of Karwar Post and Belekeri port Area in
any mode and etc.,
This WP coming on for Orders this day, N.KUMAR. J.,
made the following:
ORDER
This writ petition is filed by way of public interest litigation by the residents of Uttara Kannada District in the State of Karnataka complaining of violation of their fundamental right as well as violation of the provisions of 10 the Environment (Protection) Act, 1986 and the provisions of the Air (Prevention and Control of Pollution) Act, 1981. They sought the following prayers:
1. Grant a writ of mandamus directing the respondent No.11 and 12 not to permit the respondents 15 to 27 or any others to stack and transport the Iron and Manganese Ore within the territory of Karwar post and Belekeri Port area in any mode.
2. Kindly grant a Writ of Injunction restraining the respondent firms 15 to 27 and others from running the business of transportation, movement and stacking of iron ore and manganese ore in Uttara Kannada District.
3. Grant a Writ of Mandamus directing the respondents to implement the govt. notification dated 21.9.2005, No.CL31: MMM 2005 in its letter and spirit.
4. Grant a writ of injunction restraining respondents 11 and 12 or any other from giving 11 permission to the respondents 15 to 27 firms for further expansion of areas used for dumping ore.
5. Grant a writ of mandamus directing the respondents to evict the respondents 15 to 27 or any others carrying on similar such business on from Belade Island, Ankola District coast forthwith;
6. Grant a writ of mandamus directing the respondents to maintain Belade Islands as a natural island.
7. Grant a writ of mandamus directing the respondents 15 to 27 to pay compensation to the surrounding residents on the principle of "polluter pays".
8. Kindly pass any other writ or order as the Hon'ble Court deems fit in the circumstances of the case in the interest of justice, by moulding the relief/s.
2. This petition was instituted on 6.11.2008. After service of notice, the respondents have entered 12 appearance. From time to time, interim orders were passed by this Court against the authorities to act in terms of the aforesaid provisions of the Act. Accordingly, they have acted. The learned counsel for the petitioners submits prayer Nos.1, 2, 3, 4, 5 and 8 do not survive for consideration as all these prayers have been complied with. Now their grievance is only regarding prayer Nos.6 and 7.
3. During the pendency of this writ petition, the Parliament has enacted the National Green Tribunal Act, 2010 providing for the establishment of the National Green Tribunal for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto. In pursuance of the said Act, the Central Government has established the National Green Tribunal presided by a 13 retired Judge of the Supreme Court of India. Taking note of this law, the Hon'ble Apex Court in the case of BHOPAL GAS PEEDITH MAHILA UDYOG SANGATHAN & Ors., vs. UNION OF INDIA & Ors., reported in (2012) 8 SCC page 326, at paras 40 and 41 has held as under:-
"40. Keeping in view the provisions and scheme of the National Green Tribunal Act, 2010 (for short the 'NGT Act') particularly Sections 14, 29, 30 and 38(5), it can safely be concluded that the environmental issues and matters covered under the NGT Act, Schedule 1 should be instituted and litigated before the National Green Tribunal (for short 'NGT'). Such approach may be necessary to avoid likelihood of conflict of orders between the High Courts and the NGT. Thus, in unambiguous terms, we direct that all the matters instituted after coming into force of the NGT Act and which are covered under the provisions of the NGT Act and/or in Schedule I to the NGT Act shall stand transferred and can be instituted only before the NGT. This will help in rendering expeditious and specialized 14 justice in the field of environment to all concerned.
41. We find it imperative to place on record a caution for consideration of the courts of competent jurisdiction that the cases filed and pending prior to coming into force of the NGT Act, involving questions of environmental laws and/or relating to any of the seven statutes specified in Schedule 1 of the NGT Act, should also be dealt with the specialized tribunal, that is the NGT, created under the provisions of the NGT Act. The Courts may be well advised to direct transfer of such cases to the NGT in its discretion, as it will be in the fitness of administration of justice."
4. The National Green Tribunal Act came into force in the year 2010. Schedule I to the National Green Tribunal Act reads as under:-
[See sections 14(1), 15(1), 17(1)(a), 17(2), 19(4)(j) and 34(1)]
1. The Water (Prevention and Control of Pollution Act, 1974;
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2. The Water (Prevention and Control of Pollution) Cess Act, 1977;
3. The Forest (Conservation) Act, 1980;
4. The Air (Prevention and Control of Pollution Act, 1981;
5. The Environment (Protection) Act, 1986;
6. The Public Liability Insurance Act, 1991;
7. The Biological Diversity Act, 2002.
5. The subject matter of this case falls within the enactment mentioned in Schedule I to the National Green Tribunal Act. As the National Green Tribunal Act came into force after the institution of proceedings, in view of the aforesaid observation of the Hon'ble Supreme Court of India, this writ petition has to be transferred to the National Green Tribunal constituted under the National Green Tribunal Act.
In these circumstances, we pass the following order: (1) For the reasons stated above, the writ petition is disposed of.
16(2) The High Court registry is directed to transfer this writ petition to the National Green Tribunal constituted under the National Green Tribunal Act 2010.
Sd/-
JUDGE Sd/-
JUDGE Bss.