Karnataka High Court
Gopal V Raykar vs State Of Karnataka on 16 February, 2023
Author: S.G. Pandit
Bench: S.G. Pandit
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WP NO.17157 OF 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION NO.17157 OF 2022 (LB-RES)
BETWEEN:
GOPAL V. RAYKAR
S/O LATE VENKATARAMANA RAYKAR
AGED ABOUT 68 YEARS
PROPRIETOR - SRI KAMAKSHI SAW MILL
AND WOOD WORKS,
HANAGAL ROAD, ANAVATTI,
SORABA TALUK,
SHIVAMOGGA DISTRICT - 577 413.
...PETITIONER
(BY SRI. S.V. PRAKASH, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY THE PRINCIPAL SECRETARY
Digitally signed
by URBAN DEVELOPMENT DEPARTMENT,
MARIGANGAIAH
PREMAKUMARI M.S. BUILDING,
Location: High
Court of DR. B.R. AMBEDKAR VEEDHI,
Karnataka
BENGALURU - 560 001.
2. PATTANA PANCHAYATH
ANAVATTI,
SORABA TALUK,
SHIVAMOGGA DISTRICT - 577 413.
REPRESENTED BY ITS CHIEF OFFICER.
3. ASSISTANT EXECUTIVE ENGINEER
MANGALORE ELECTRICITY SUPPLY
COMPANY LIMITED,
ANAVATTI SUB-DIVISION,
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WP NO.17157 OF 2022
ANAVATTI,
SORABA TALUK,
SHIVAMOGGA DISTRICT - 577 413.
4. KARNATAKA STATE POLLUTION CONTROL BOARD
REGIONAL OFFICE,
PLOT NO.156, AUTO COMPLEX,
INDUSTRIAL AREA,
SHIVAMOGGA - 577 204.
REPRESENTED BY ENVIRONMENT OFFICER.
5. SMT. DAKSHAYANAMMA D.
W/O MAHABALESHWARAPPA
ANAVATTI POST,
SORABA TALUK,
SHIVAMOGGA DISTRICT - 577 413.
...RESPONDENTS
(BY SRI. K.R. NITYANANDA, AGA FOR R1;
SMT. M.N. VIJAYA, ADVOCATE FOR
SRI. R.S. ANKALAKOTI, ADVOCATE FOR R2;
SRI. G.C. SHANMUKHA, ADVOCATE FOR R3;
SMT. SUMANGALA GACHCHINAMATH, ADVOCATE FOR R4;
SRI. KASHINATHA J.D., ADVOCATE FOR C/R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE AN APPROPRIATE WRIT OR ORDER OR DIRECTION
DECLARING THAT THE SEIZURE OF THE SAW MILL AND WOOD
INDUSTRY RUN BY THE PETITIONER IN THE NAME AND STYLE
OF KAMAKSHI SAW MILL AND KAMAKSHI WOOD WORKS
SITUATED AT HANAGAL-ANAVATTI PWD ROAD, ANAVATTI
TALUK, SORABA TALUK, SHIVAMOGGA DISTRICT AS
ARBITRARY, ILLEGAL AND ONE WITHOUT JURISDICTION AND
WITHOUT AUTHORITY OF LAW; AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP NO.17157 OF 2022
ORDER
Heard Sri. S.V. Prakash, learned counsel for the petitioner; Sri. K.R. Nityananda, learned Additional Government Advocate for respondent No.1; Smt. M.N. Vijaya, learned counsel on behalf of Sri. R.S. Ankalakoti, for respondent No.2; Sri. G.C. Shanmukha, learned counsel for respondent No.3; Smt. Sumangala Gachchinmath, learned counsel for respondent No.4; and Sri. Kashinath J.D., learned counsel for Caveator/respondent No.5.
2. Though the petitioner has prayed for several prayers in the writ petition, Sri. S.V. Prakash, learned counsel appearing for the petitioner would submit that for the present, the petitioner would satisfied with the prayer for issuance of writ of mandamus to respondents 2 and 4 to consider applications for issuance of Trade Licence and No Objection Certificate/consent for running the Saw Mill and Wood works by the petitioner, respectively by the said authorities.
3. Sri. S.V. Prakash, learned counsel appearing for the petitioner would submit that the petitioner is running a Saw Mill at Survey No.61/2A which was converted for the purpose of -4- WP NO.17157 OF 2022 Saw Mill bearing Property No.811/61/2A/10C situate at Anavatti Village, Soraba Taluk, Shivamogga District, since 1987. Learned counsel would further submit that the Saw Mill of the petitioner was seized and locked on the ground that it causes pollution and the petitioner has failed to obtain No Objection Certificate/consent from the respondent No.4- Pollution Control Board. He would also submit that in terms of the interim order dated 29th September, 2022, respondent No.2 removed the lock and handed over the possession of the Saw Mill in question to the petitioner. It is also submitted that as directed by this Court in terms of the order dated 29th September, 2022, petitioner has filed affidavit undertaking that he would not run the Saw Mill without obtaining the Trade licence from the respondent No.2.
4. Learned counsel appearing for the petitioner would also submit that application dated 06th June, 2022 (Annexures 'K' and 'K1') submitted to the respondent No.2-Pattan Panchayat for issuance of Trade licence and application dated 22nd July, 2022 (Annexure-M) to the respondent No.4-Pollution Control Board for issuance of No objection Certificate/consent are pending consideration. It is submitted by the learned -5- WP NO.17157 OF 2022 counsel appearing for the petitioner that the said applications are kept pending and respondents 2 and 4 are under legal obligation to consider those applications in terms of the provisions of Karnataka Municipalities Act, 1964 (for short, hereinafter referred to as '1964 Act') as well as the Air (Prevention and Control of Pollution) Act, 1981 (for short, hereinafter referred to as '1981 Act'), respectively. Learned counsel would submit that since the respondents 2 and 4 have failed to perform their statutory duty, he prays for writ of mandamus to respondents 2 and 4 to consider the applications made by the petitioner.
4. Per contra, Smt. Vijaya M.N., learned counsel appearing for the respondent No.2 would submit that the petitioner has not submitted the relevant documents along with the application for issuance of Trade licence and in terms of Notice dated 30th June, 2022 (Annexure-Z) as well as vide Notice-2 dated 08th July, 2022 (Annexure-AA). The respondent No.2 asked the petitioner to submit relevant documents so as to consider the application made by the petitioner for issuance of Trade licence, which the petitioner has failed to furnish. -6-
WP NO.17157 OF 2022
5. Smt. Sumangala Gachchinmath, learned counsel appearing for the respondent No.4 would submits that the petitioner along with his application dated 22nd July, 2022 at Annexure-M had not enclosed the relevant documents and as such, the petitioner is asked to submit relevant documents to consider his application filed under Section 21 of the 1981 Act.
6. Sri. Kashinath J.D., learned counsel appearing for the respondent No.5 submit that the respondent No.5 is the adjacent neighbour of the petitioner, since running of Saw Mill causes nuisance, the respondent No.5 has filed complaint to the respondent No.2 not to issue Trade licence for running the Saw mill. It is also submitted that the complaint has been submitted to various authorities including Forest Department and Deputy Commissioner.
7. Section 256 of the Karnataka Municipalities Act, 1964 requires a person to obtain licence for running the activities specified under Part I of the Schedule XIII of the Act.
8. The petitioner submitted an application dated 06th June, 2022 (Annexures 'K' and 'K1') to the respondent No.2, requesting to issue Trade licence to run Saw Mill and Wood -7- WP NO.17157 OF 2022 works. The respondent No.2, has a legal obligation under Section 256 of the 1964 Act, to consider the application submitted by the petitioner for issuance of the Trade licence.
9. The respondent No.2, vide Notice dated Nil at Annexure-L; Notice dated 30th June, 2022 at Annexure-Z; and Notice-2 dated 08th July, 2022 at Annexure-AA, asked the petitioner to furnish certain documents including No Objection Certificate/consent letter of the respondent No.4-Pollution Control Board, Tax Paid receipts, etc. It is for the petitioner to submit relevant documents in support of his applications dated 06th June, 2022. (Annexures 'K' and 'K1').
10. The petitioner has also submitted an application dated 22nd July, 2022 (Annexure-M) under Section 21 of 1981 Act to the respondent No.4-Pollution Control Board. Section 21 of the 1981 Act restricts the operation of certain industrial plants without consent of the Pollution Control Board. A person who intends to operate an industrial plant, shall obtain consent by making an application under Section 21(1) of the 1981 Act. The respondent No.4-Pollution Control Board is legally obligated to consider the same by making such enquiry, as it deem fit, in -8- WP NO.17157 OF 2022 respect of application for consent referred to in Sub-section 1 of Section 21. Section 21(4) of 1981 Act reads as follows:
"(4) Within a period of four months after the receipt of the application for consent referred to in sub-section (1), the State Board shall, by order in writing, [and for reasons to be recorded in the order, grant the consent applied for subject to such conditions and for such period as may be specified in the order, or refuse such consent.
Provided that it shall be open to the State Board to cancel such consent before the expiry of the period for which it is granted or refuse further consent after such expiry if the conditions subject to which such consent has been granted are not fulfilled:
Provided further that before cancelling a consent or refusing a further consent under the first provision, a reasonable opportunity of being heard shall be given to the person concerned."
11. Sub-Section (4) of Section 21 of the 1981 Act requires respondent No.4-Pollution Control Board to consider an application within four months from the date of receipt of application and by order in writing for reasons to be recorded in the order, grant the consent applied for subject to such conditions, for such period or refuse such consent. In the instant case, respondent No.4 Board has failed to perform its -9- WP NO.17157 OF 2022 statutory duty cast under Sub-Section (4) of Section 21 of 1981 Act. In the light of the above, I deem it appropriate to pass the following:
ORDER
(i) The petitioner shall submit the relevant documents to the respondent No.2 in support of his application made for issuance of Trade licence as well as to the respondent No.4 in support of his application for issuance of No Objection Certificate/consent, within fifteen days from today;
(ii) Respondent No.4-Pollution Control Board is directed to consider the application dated 04th/22nd July, 2022 (Annexures 'M' and 'N') along with documents to be submitted by the petitioner as directed above and pass appropriate orders, within four weeks from expiry of fifteen days from today;
(iii) Depending upon the order to be passed by respondent No.4-Pollution Control Board, the respondent No.2 shall consider the applications of the petitioner for issuance of Trade licence in terms of Annexures 'K' and 'K1' dated 06th June, 2022 and pass appropriate orders in accordance with law, within in a period of four weeks from the date
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WP NO.17157 OF 2022 of communication of order that would be passed by the respondent No.4-Pollution Control Board;
(iv) Respondent No.5 is at liberty to file objections if any, to respondent No.2 as well as respondent No.4;
(v) Depending upon the order to be passed by respondents 2 and 4, the petitioner is at liberty to request power sanction from respondent No.3.
Writ petition is accordingly disposed of.
SD/-
JUDGE ARK