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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20th DAY OF JANUARY 2014
PRESENT
THE HON' BLE MR.D.H.WAGHELA, CHIEF JUSTICE
AND
THE HON' BLE MRS.JUSTICE B.V.NAGARATHNA
WP NO.47047/2013(GM-MMS-PIL)
BETWEEN
1. SRI N SANTHOSH
AGED ABOUT 31 YEARS,
S/O NARAYANA,
2. SRI B. UMESH
AGED ABOUT 34 YEARS,
S/O BOJAPPA,
3. SRI NARAYANA
AGED ABOUT 53 YEARS,
S/O YELLANAYAKA,
4. SRI. SWAMY RAO
AGED ABOUT 47 YEARS,
S/O RUDRA NAYAKA,
5. SRI H.C. SANTHOSH
AGED ABOUT 22 YEARS,
S/O CHENAPPA,
6. SRI H.S. BACHCHAPPA
AGED ABOUT 46 YEARS,
S/O SEENA MADIWAL
7. SRI RAVI BAANDI
AGED ABOUT 42 YEARS,
S/O MANJU BAANDI
8. SMT. DEVAMMA
AGED ABOUT 60 YEARS,
W/O SIDDAPPA,
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9. SRI RUDRAPPA
AGED ABOUT 47 YEARS,
S/O RACHANAYAKA,
10. SRI KADAPPA
AGED ABOUT 58 YEARS,
S/O MALADASAIAH,
11. SRI RAMA
AGED ABOUT 50 YEARS,
S/O THIMMA NAYAK,
12. SMT MANJULA
AGED ABOUT 38 YEARS,
W/O NARAYANA,
13. SRI CHENNAPPA
AGED ABOUT 62 YEARS,
S/O MALADASAIAH
14. SRI VENKATRAMAN
AGE: MAJOR,
S/O GIRIYAPPA,
15. SMT. MEENAKSHI
AGE: ABOUT 53 YEARS,
W/O KRISHNA NAYAK,
16. SMT. GOWRAMMA
AGE: ABOUT 42 YEARS,
W/O MANJAPPA GOWDA
17. SRI LAXMAN
AGE: ABOUT 34 YEARS,
W/O YELLA NAYAK,
18. SRI. MOTAPPA
AGE: ABOUT 57 YEARS,
S/O KARI NAYAK,
ALL ARE RESIDING AT MATHIKOPPA MALAVALLI OF
MASAGALLI VILLAGE, BEEMANAKERE POST
HOSANAGAR TALUK, SHIMOGA DISTRICT
... PETITIONERS
(By Sri.DAYANAND S PATIL, ADV. )
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AND
1. THE STATE OF KARNATAKA
DEPARTMENT OF MINES AND GEOLOGY
BY ITS SECRETARY, VIKAS SOUDHA
BANGALORE 560001
2. THE STATE OF KARNATAKA
DEPARTMENT OF REVENUE
BY ITS SECRETARY
M.S. BUILDING
BANGALORE 560001
3. THE DIRECTOR OF MINES AND GEOLOGY
KHANIJA BHAVAN
RACE COURSE ROAD
BANGALORE 560001
4. THE KARNATAKA STATE POLLUTION CONTROL BOARD
REPRESENTED BY ITS SECRETARY
PARISARA BHAVANA
4TH AND 5TH FLOOR, CHURCH STREET
BANGALORE
5. THE DEPUTY COMMISSIONER
SHIMOGA DISTRICT
SHIMOGA 577201
6. THE ASSISTANT COMMISSIONER
SAGAR SUB-DIVISION, SAGAR-AT/TQ
SHIMOGA DISTRICT 577401
7. THE ASSISTANT CONSERVATOR OF FOREST
SAGAR-AT/TQ
SHIMOGA DISTRICT 577401
8. THE TAHASHILDAR
HOSANAGAR
HOSANAGAR AT/TQ,
SHIMOGA- DISTRICT 577418
9. THE GRAM PANCHAYAT JENI
BY ITS SECRETARY
BHEEMANKERE-POST
HOSANAGARA-TALUK
SHIMOGA DISTRICT 577418
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10. SRI B.RAMAKRISHNA SHEREGAR
AGE: MAJOR, M/S.MANJUNATH STONE CRUSHER
R/O. HUNASAVALLI VILLAGE
HARIDRAVATHI POST
HOSANAGAR TALUK,
SHIMOGA DISTRICT 577418
11. SRI H.B. KALYANAPPA GOWDA
S/O BHADREGOUDA,
AGE: MAJOR,
M/S.KALIKAMBA STONE CRUSHER
R/O MASAGALLI, BHIMAGERE POST
HOSANAGAR TALUK
SHIMOGA DISTRICT 577418
12. SRI KALYAN KUAMR
AGE: MAJOR,
M/S. SIGANDURESHWARI STONE CRUSHER
R/O KODUR, HOSANAGAR TALUK,
SHIMOGA DISTRICT 577418
13. SRI H.V. GURURAJ
AGE: MAJOR,
M/S.VISHWASHRI STONE CRUSHER
R/O GURUNILAYA
2ND CROSS, CHANNAPPA LAYOUT
SHIMOGA TALUK 577201
14. SRI K.S. PRASHANTH
S/O K.G. SHIVAPPA,
AGE: MAJOR
M/S.RENUKAMBA STONE CRUSHER
R/O UDAYA RAVI
JOSEPH NAGAR, SAGAR AT/TQ
SHIMOGA -DISTRICT 577401
15. SRI B. GURUPRASAD
S/O.BASALINGAPPA GOUDA
AGE: MAJOR, M/S.GURUKRUPA STONE CRUSHERS
BASAVANAHIDI, ANANDAPURA
M/S.GURUKRUPA STONE CRUSHERS
BASAVANAHIDI, ANANADPURA
SAGAR TALUK
SHIMOGA DISTRICT 577412
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16. SRI D.S. SHASHIDHARAN
AGE: MAJOR
M/S.MOOKAMBIKA STONE CRUSHERS
C/O SULAGERE, NAGARA,
HOSANAGAR TALUK
SHIMOGA DISTRICT 577418
17. SRI.K.S.RAJASHEKAR
AGE:MAJOR
M/S.HARSHA STONE CRUSHERS
R/O.BATTEMALLAPPA,
HOSANAGAR TAKUK
SHIMOGA DISTRICT -577418
... RESPONDENTS
(By Sri.NARENDAR.G., AGA FOR R.1 TO 3 & 5 TO 8
SRI.GURURAJ JOSHI, ADV. FOR R.4
SRI.MAHESH R.UPPIN, ADV. FOR R.11 TO 17
SRI.B.S.PRASAD, ADV. FOR R.12 &
R.14 (NOC NOT OBTAINED))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
FINAL NOTIFICATION DATED 05.11.2012 ISSUED BY R.5 VIDE
ANNEXURE-N AND QUASH THE ORDER DATED 16.01.2013 ISSUED
BY R5 VIDE ANNEXURE-T AND QUASH THE LICENSE NO.3 DATED
16.01.2013 ISSUED BY R5 TO R10 VIDE ANNEXURE-T.1 ii) QUASH
THE LICENSE NO.5 DATED 16.01.2013 ISSUED BY R5 TO R11 VIDE
ANNEXURE-T2 iii) QUASH THE LICENSE NO.1 DATED 16.01.2013
ISSUED BY R5 TO R12 VIDE ANNEXURE-T3 iv) QUASH THE LICENSE
NO.12 DATED NIL ISSUED BY R5 TO R13 VIDE ANNEXURE-T4
v)QUASH THE LICENSE NO.6 DATED 16.01.2013 ISSUED BY R5 TO
R14 VIDE ANNEXURE-T5 vi) QUASH THE LICENSE NO.4 DATED
16.06.2013 ISSUED BY R5 TO R15 VIDE ANNEXURE-T6 vii) QUASH
THE LICENSE NO.2 DATED 16.01.2013 ISSUED BY R5 TO R16 VIDE
ANNEXURE-T7, viii)QUASH THE LICENSE NO.7 DATED 16.01.2013
ISSUED BY R5 TO R17 VIDE ANNEXURE-T8 and DIRECT R1 TO R8
TO CONSIDER THE OBJECTIONS FILED BY THE PETIITONERS &
VILLAGERS OF MAJARE MALAVALLI & MATHIKOPPA OF MASAGALLE
VILLAGE.
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THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, NAGARATHNA .J, MADE THE FOLLOWING:
ORDER
1. This Writ Petition is sought to be filed in public interest assailing the Final Notification dated 05.11.2012 issued by respondent No.5 - Deputy Commissioner, Shimoga District, Shimoga (Annexure-N) and order dated 16.01.2013 which is at Annexure-T. Relief is also sought with regard to quashing of licenses issued by respondent No.5, which are at Annexures T.1 to T.8.
2. Petitioners claim to be the residents of Mathikoppa Malavalli of Masagalli village, Bheemanakere post, Hosanagara Taluk, Shimoga District, owning agricultural lands around the safer zone. That survey No.16 of Masagalli village which was a gomal land was de-reserved and has been notified as the safer zone area. This has been pursuant to the order of this Court in WP No.17087/1997 dated 10.07.1998, pursuant to which the Karnataka Regulation of Stone Crushers Act, 2011 (for short 'the Act') was promulgated and thereafter the Rules were also framed. Section 6 of the Act deals with the conditions for grant of license.
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3. The grievance of the petitioners is that, respondent No.5
- Deputy Commissioner has notified the safer zone to an extent of 15 acres in Sy No.16 without hearing the villagers and that the safer zone is located in gomal land. The further grievance of the petitioners is that, identification of the safer zone is in close proximity to various establishments such as Government School, Anganavadi Kendra, residential area and reserved forest. It is under these circumstances that the Final Notification dated 05.11.2012 (Annexure-N) with regard to location of safer zone has been assailed.
4. Statement of objections has been filed on behalf of respondent Nos.1 to 3 and 5 to 8. It is stated that the challenge has been made repeatedly to the location of safer zone in the instant case. That initially one Dyavappa Gowda had preferred WP No.13695/2013 opposing the constitution of the safer zone. That Writ Petition was not pressed and it was dismissed on 09.04.2013. That the petitioners herein are acting at the behest of certain vested interests. That petitioner No.1 herein is preferring this Writ Petition at the behest of Dyavappa Gowda. In fact, another petition in WP No.41820/2012 was filed challenging the very proposal to -8- identify and establish the safer zone. In that Writ Petition, the son of Dyavappa Gowda, one Veerendra was petitioner No.2. That Writ Petition was withdrawn on 02.08.2013. That this is the third time these petitioners have filed the Writ Petition once-again assailing the location of safer zone in the area. It is also stated that petitioner No.1 is a chronic litigant and these Writ Petitions are not filed with a bona fide object in mind, but with an oblique motive. It is also averred that as against petitioner No.3, an FIR in Crime No.14/2012 has been registered in Hosanagara Police Station and that the prosecution is pending.
5. The statement of objections also narrates that Sy.No.16 is measuring 334 acres and that a meager extent of 15 acres has been notified as a safer zone for stone crushing units having regard to Section 6 of the Act. That Writ Petitions are filed with mala fide intent and with an oblique motive in order to thwart the location of safer zone in the area. It is also averred that the location of safer zone is having regard to the parameters mentioned in Section 6 of the Act. The fact that there are also certain quarries operating in the said survey numbers has not been objected to by the petitioners. -9- Contending that the procedure laid down under the Act has been followed in identifying the safer zone, respondent Nos.1 to 3 and 5 to 8 have sought dismissal of the Writ Petition. No rejoinder has been filed by the petitioners to the statement of objections filed by respondent Nos.1 to 3 and 5 to 8 denying the averments made against them in the statement of objections.
6. We have heard learned counsel for the petitioners and learned Additional Government Advocate for respondent Nos.1 to 3 and 5 to 8 and perused the material on record. No relief has been sought as against respondent No.4 - Karnataka State Pollution Control Board.
7. Section 6 of the Act deals with the manner in which the license has to be granted under the Act while setting up a stone crusher unit. It mandates that the stone crushing unit cannot be established outside the safer zone. No two safer zones can be located within a radius of fifty kilometers. Section 6 of the Act reads as under;
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6. Conditions for grant of license .- License shall be granted under this Act subject to the following conditions, namely:-
1) The stone crusher shall not be established outside the safer zone;
2) The safer zone shall be within a location of,-
(a) two kilometers away from the National Highways, habitats, temples, schools and river;
(b) one and a half kilometers away from the State Highway;
(c) five hundred meters away from the link roads;
(d) eight kilometers away from the limits of Municipal Corporations:
(e) four kilometers away from the limits of District Head Quarters;
(f) two kilometers away from the boundary limits of a Taluk Head Quarters;
(g) one kilometer away from the limits of an inhabited village or any land recorded as forest in Government records or any private land which is shown as cultivable land in the revenue records;
(3) No two safer zones shall be located within a radius of fifty kilometers.
(4) The licencing Authority shall, within a period of four months from the date of commencement of this Act, identify and declare the safer zones by notification
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specifying the area and limits within their jurisdiction:
Provided that the Licencing Authority may in exceptional circumstances and for the reasons to be recorded in writing may relax any of the condition or conditions specified in sub-section (2) and sub-section (3) for the purpose of declaration of safer zones. (5) The Licencing Authority shall send the proposal of declaration of safer zone under sub-section (4), to the pollution control Board for its certification. On receipt of the proposal by the pollution control Board or where three months have lapsed from the date of the proposal and no communication has been received by the Licencing Authority, the Licencing Authority shall by notification declare the safer zone in accordance with the proposal.
(6) Each stone crusher unit shall be located in a minimum area of one are of land including stone crushers belonging to State Government or the Panchyat as the case may be.
(7) Each unit shall abide by the pollution control measures or such other safeguards as may be prescribed by the Karnataka State Pollution Control board from time to time.
(8) Each unit shall conform to the Noise (Regulations and Control) Rules, 2000.
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(9) The unit shall abide by the provisions of the Air (Prevention and Control of Pollution) Act, 1981 and the Environment Protection Act, 1986 and rules made thereudner."
8. In the instant case, it is noted that initially three areas were identified for the location of safer zones in Masagalli village. After obtaining the requisite permission from the Karnataka State Pollution Control Board, as well as, 'No Objection' from the Forest Department, the safer zone was located at Sy.No.16, which is a Government gomal land to an extent of 15 acres. Thereafter, licences in respect of various parcels of that land has been granted to certain persons for the establishment of stone crusher units, subject to certain terms and conditions. In this regard, the communication dated 07.08.2012 made by the Deputy Commissioner to the Member Secretary, Karnataka State Pollution Control Board is perused. It is stated therein that Sy.No.16 of Masagalli Village is totally 334 acres in extent which is gomal land and out of that an extent of 15 acres was being set apart for location of the safer zone. The reasons as to why the relaxation had to be made for locating the safer zone in Sy.No.16 are stated in
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that communication. Thereafter, on approval being granted by the Karnataka State Pollution Control Board, the Notification dated 05.11.2012 was issued by the Deputy Commissioner with regard to location of the safer zone. The said notification has been issued after obtaining clearance from both respondents Karnataka State Pollution Control Board and Deputy Conservator of Forest. The clearance given by the Board is not assailed in this Writ Petition
9. On consideration of the averments made by the petitioners in their Writ Petitions and also the objections filed on behalf of respondent Nos.1 to 3 and 5 to 8, it is noted that for the third time the location of safer zone in Sy.No.16 of Masagalli village has been assailed before this Court. The contents of statement of objections clearly indicate that these Writ Petitions have not been filed with a bona fide intent, but at the instance of certain vested interests who had earlier assailed the setting up of safer zone and had not pursued the Writ Petitions. The averments made against the petitioners have not been countered by them by filing any rejoinder. That apart, we find that respondent No.5 has taken note of the parameters set in Section 6 of the Act and has issued the
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final notification for locating the safer zone in Sy.No.16. Annexure-E, which is the communication issued by respondent No.5-Deputy Commissioner to the Karnataka State Pollution Control Board, states at para-2(c), the reasons as to why the relaxation have been made. The Pollution Control Board has considered this and has approved the location of the safer zone. In that view of the matter, it would not be proper for this Court to sit in judgment over what has been stated by the authorities and approved by the Pollution Control Board. Therefore, we find that the Writ Petition has to be dismissed not only for being a motivated petition and not in public interest, but also on merits. Accordingly, the Writ Petition is dismissed. However, we refrain from imposing costs.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE mv