Karnataka High Court
Smt Surekha vs State Of Karnataka on 12 January, 2023
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
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WP No. 17014 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
WRIT PETITION NO. 17014 OF 2021 (GM-MM-S)
BETWEEN:
SMT. SUREKHA
W/O DATTARAM
AGED ABOUT 59 YEARS,
PROPRIETOR
M/S SUMUKHA STONE CRUSHING INDUSTRIES
R/O IGOADA, SIDDAPUR TALUK
UTTARA KANNADA
KARWAR DISTRICT-581355
...PETITIONER
Digitally
signed by R (BY SRI. VIKRAM HUILGOL, SR. ADV. FOR
DEEPA
Location:
SRI. SHIVALLI SHIVAYOGI YALLAPPAGOUDA, ADV.)
High Court of
Karnataka
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF COMMERCE AND INDUSTRIES
VIKASA SOUDHA
BENGALURU-560001
2. THE DEPUTY COMMISSIONER AND CHAIRMAN
DISTRICT STONE CRUSHERS LICENSING AND
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WP No. 17014 of 2021
REGULATING AUTHORITY
UTTARA KANNADA
KARWAR DISTRICT-581301
3. THE DEPUTY DIRECTOR
DEPARTMENT OF MINES AND GEOLOGY
AND MEMBER SECRETARY
DISTRICT STONE CRUSHERS LICENSING AND
REGULATION AUTHORITY
UTTARA KANNADA
KARWAR DISTRICT-581301
4. THE MEMBER SECRETARY
KARNATAKA STATE POLLUTION CONTROL BOARD
PARISARA BHAVANA
1ST TO 5TH FLOOR
NO.49, CHURCH STREET
BENGALURU-560001
5. THE SENIOR ENVIRONMENTAL OFFICER
KARNATAKA STATE POLLUTION CONTROL BOARD
ZONAL OFFICE PLOT NO.10B,PARISAR BHAVANA
BAIKAMPADY INDUSTRIAL AREA
MANGALORE-575011
6. THE DEPUTY CONSERVATOR OF FOREST
SIRSI DIVISION,
SIRSI UTTARA KANNADA DISTRICT
KARWAR-581401.
7. THE MOEF
ZONAL DIVISION
BY ITS DIRECTOR
KENDRIYA SADAN, KORAMANGALA
BENGALURU.
....RESPONDENTS
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WP No. 17014 of 2021
(BY SRI. S.S. MAHENDRA, AGA FOR R1 TO R3 & R6
SRI. CHIDANANDA P., ADVOCATE FOR R4
SRI. NATARAJU T, ADVOCATE FOR R5
SRI. H. SHANTHI BHUSHAN, DSG FOR R7)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE PROCEEDINGS DATED 30.03.2021 AND
12.08.2021 ISSUED BY THE R2 IN ITS DISTICT STONE
CRUSHER LICENSING AND REGULATING AUTHORITY
COMMITTEE MEETING, IN SO FAR AS PETITONER IS
CONCERNED, AS BEING ARBITRARY, ERRONEOUS AND
CONTRARY TO LAW EQUITY AND JUSTICE (ANNEXURE-L
AND P)
THIS WRIT PETITION COMING ON FOR FINAL DISPOSAL,
THIS DAY, ASHOK S. KINAGI, J., MADE THE FOLLOWING:
ORDER
The petitioner filed this writ petition seeking for quashing the proceedings passed in the meeting dated 12.08.2021, issued by respondent No.2 in its meeting of the District Stone Crusher Licensing Regulating Authority Committee dated 12.08.2021, vide Annexure-P.
2. Brief facts leading rise to filing of this writ petition are as under:
The petitioner is the absolute owner of the land bearing Sy.No.151B measuring 5 guntas situated at Igoda -4- WP No. 17014 of 2021 Village and the occupant of land bearing Sy.No.151A/2 measuring 1 acre 35 guntas and obtained consent from the owner of the land bearing Sy.No.151A/2 for carrying stone crusher activities. Sy.No.151B and 151A/2 were undivided survey number of 151 which was originally measuring 5 acres. The said survey number i.e., Sy.No.151 was sub-divided into different numbers i.e., Sy.No.151B measuring 5 guntas and 151A/2 measuring 1 acre 35 guntas, totally measuring 2 acres which belongs to the petitioner. The Karnataka State Pollution Control Board (for short 'KSPCB') granted consent on 12.05.1993 in favour of the vendor of petitioner for establishing stone crusher unit in the land bearing Sy.No.151 measuring 2 acres. The vendor of the petitioner established a stone crusher unit in the year 1993. Petitioner's vendor after obtaining CFE dated 12.05.1993, approached licencing authority and obtained CFO from time to time and continued to carry on the stone crusher activities. The petitioner purchased land measuring 5 guntas along with the stone crusher unit under registered sale deed dated -5- WP No. 17014 of 2021 29.03.2010 and Sri.Dattaram G., purchased the land measuring 1 acre 35 guntas in Sy.No.151 and he gave consent in favour of the petitioner to carry on stone crusher activities in the said land. The petitioner continued to carry the stone crusher activities in the said land till the year 2014.
During the year 2011, the Karnataka Regulation of Stone Crushers Act, 2011 (Amended Act, 2013) came into force. As per the amended provision, it was the duty of the petitioner to get crusher area declared as a safer zone and to obtain a licence in Form-C on the stone crusher business. The petitioner submitted an application on 19.02.2014, requesting the respondent No.2 to declare the same as a safer zone and requested to issue a licence in Form-C to carry on stone crusher activities. Respondent No.2 directed the officers to conduct a joint inspection and submit a report. The team of officers including Revenue, Forest and KSPCB visited the spot on 29.04.2014 and submitted a report stating that the aforesaid land is situated in a safer zone and same may be -6- WP No. 17014 of 2021 declared as a safer zone. After the receipt of joint inspection report, respondent No.2 directed the petitioner to obtain CFO from the KSPCB and submit the same to the licencing authority for obtaining licence in Form-C. The petitioner obtained the CFO from the KSPCB on 28.02.2017. After obtaining CFO, the petitioner requested to issue licence in Form-C for carrying stone crusher activities. It is submitted that CFO was issued from time to time in favour of the petitioner. The respondent No.2 instead of issuing Form-C, directed the petitioner to obtain permission from the Central Government under Section 2 of the Forest Conservation Act on the ground that connecting road to the crusher area is situated in a forest land and the petitioner has not obtained permission from the Forest Department. The petitioner, aggrieved by the same has filed this writ petition.
3. Learned Additional Government Advocate has filed statement of objections admitting the joint inspection conducted on 29.04.2014 and also CFO obtained by the -7- WP No. 17014 of 2021 petitioner. It is contended that Section 2 of the Forest Conservation Act prohibits non-forest activities within the forest area and the approach road in crushing area is within the forest. As such, permitting any non-forest activities within forest area requires forest clearance from the forest department. In the absence of the same, it contravenes Section 2 of the Forest Conservation Act. It is further submitted that in the absence of clear approach road to the crushing area, the licence in Form-C could not be issued. Hence prayed to dismiss the writ petition.
4. Heard Sri. Vikram Huilgol, learned senior counsel for the petitioner and Sri. S.S.Mahendra, learned Additional Government Advocate for the respondents.
5. Learned senior counsel for the petitioner submits that it is not permissible for the licencing authority for joint survey second time and he further submits that petitioner is not required to obtain permission from the forest department under Section 2 of the Forest Conservation Act. Further, he submits that once if CFO is -8- WP No. 17014 of 2021 issued, respondent No.2 has no right to insist permission from the forest department. He further submits that Section 6A(2) does not provide conditions for seeking permission from the forest department. He submits that the impugned proceedings is contrary to Section 6A(2). He further submits that if the forest department insist for a permission from the Central Government under Section 2 of the Forest Conservation Act, the petitioner may be permitted to make application seeking permission from the Central Government. Hence on these grounds he prays to allow the writ petition.
6. Per contra, learned Additional Government Advocate submits that application was submitted in the year 2014 and declaration of safer zone was on 21.08.2014 and the petitioner has not acted upon the declaration dated 21.08.2014. He further submits that CFO was obtained on 28.02.2017. He submits that the petitioner has kept quite for 3 years from the date of declaration of safer zone and he submits that the CFO was -9- WP No. 17014 of 2021 valid upto 30.09.2017. Hence he submits that the impugned proceedings are in accordance with the provisions of the Karnataka Regulation of Stone Crushers Act, 2011. Hence he prays to dismiss the writ petition.
7. Perused the records and considered the submissions of the learned counsel for the parties.
8. In order to consider the case of the petitioner, it is necessary to consider the provisions of Sections 3, 6, 6- A of the Karnataka Regulation of Stone Crushers Act, 2011, which reads as under:
"3. Stone crushers to obtain license.-
(1) No person shall carry on the business of stone crushing in the State except under and in accordance with the terms and conditions of a license issued under this Act.
(2) Any person who is carrying on the business of stone crusher on the date of commencement of this Act with a license issued by any authority shall apply to the Licencing Authority with a declaration in the prescribed form that the existing area conforms to the condition stipulated in
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Section 6 or any other suitable area conforming to the conditions stipulated under Section 6, within three months from the date of commencement of the Karnataka Regulation of Stone Cruhers (Amendment) Act, 2013 for a licence under section 4 of the Act.
(3) On receipt of the application along with declaration under sub-section (2), the existing stone crusher units may be allowed to function till the grant or refusal of certificate of compliance of safer zone under sub-section (4) by the authority or till three months from the date of application, whichever is earlier.
(4) On receipt of application under sub- section (2) or for renewal of licence, the Licensing Authority shall cause joint inspection of the location under subsection (3) of Section 6 and declaration of safer zone, the Licensing Authority shall issue a certificate of compliance of safer zone to the applicant. In the area specified in the declaration is not declared as safer zone the Licensing Authority shall reject the application for the reasons to be recorded in writing and inform the applicant accordingly. However, applicant is at liberty to make fresh application for alternate location:
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Provided further that if the application is rejected, the applicant shall stop the operation of stone crusher forthwith and submit fresh application to the Licensing Authority.
(5) If the Licensing Authority issues a certificate of compliance of safer zone, the applicant shall approach the Karnataka State Pollution Control Board and obtain Consent for Operation (CFO) and submit the same to the Licensing Authority.
(6) The Licensing Authority, after production of Consent for Operation (CFO) from the Karnataka State Pollution Control Board by the applicant, shall issue licence subject to compliance of conditions specified in Section 6-A. (7) If the person having existing stone crusher gets any other place certified as safer zone by the Licensing Authority other than the present working place, such crusher shall be shifted to such safer zone so certified within one year from the date of grant of certificate of compliance of safer zone under sub-section (4).
6. Conditions for declaring Safer Zone.- The declaration of safer zone for stone crushers under this Act, shall be subject to the following conditions, namely:-
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(1) The safer zone shall not be located within,-
(a) Two hundred meter from the limits of the National Highways or State Highways;
(b) One hundred meter from the limits of major district roads or other roads;"
(c) Five hundred meter from revenue village, temples, schools;
(d) The boundary of Municipal Corporations, City Municipal Corporation, Town Municipal Council.
(2) Each stone crusher unit shall be located in minimum area of one acre of land.
(3) The Licensing Authority shall, within a period of three months from the date of receiving application, verify the above conditions through joint inspection from the concerned Officers of Mines and Geology, Revenue, Forest Department and Environmental Officer, Karnataka State Pollution Control Board and declare safer zone within their jurisdiction by notification, specifying the area and its limits:
Provided that the Licensing Authority shall declare the safer zone for existing stone crusher within one month in any case not later than three months from the date of receipt of application.
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6A. Conditions for grant of License. - (1) No License shall be issued for stone crushers outside the safer zone.
(2) The Licensing Authority on production of Consent for Operation (CFO) certificate issued by the Karnataka State Pollution Control Board shall grant license to the applicant in such form as may be prescribed. The licensee shall adhere to the following conditions, namely:-
s (1) each 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 there under as prescribed by KSPCB from time to time.
(2) each unit shall conform to the Noise (Regulations and Control) Rules, 2000.
(3) an individual or cluster of stone crushers shall provide 15 to 20 feet wall/GI sheet protection on all the three sides (parallel to National Highway or State Highway or major district road or village habitation or temple or school as the case may be) in addition to the air pollution control measures.
(4) The applicant has to,-
(a) adopt necessary dust containment system like building enclosures to the major dust emission sources to prevent dust going out of the place.
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WP No. 17014 of 2021
(b) construct enclosures of G.I.sheets (1.66 mm and 1.25 mm thick) and supported by angle structures to withstand strong wind.
(c) give the roof a gradual slope/curvature so as to prevent accumulation of water.
(d) Provide material transfer point such as hopper bottom/product unloading conveyor to be covered suitably to prevent dust release into the atmosphere.
(e) ensure that where complete enclosures are not possible such as openings in jaw crushers side and bottom they are to be covered suitably with GI sheets/ rubber flap or any other material to prevent dust release into the atmosphere.
(f) ensure that telescopic chutes are provided at product unloading conveyor to prevent dust release into the atmosphere during free fall of material from height. These chutes can be adjusted in length according to size of the heap.
(g) provide openings in the enclosures over Shafter motor driver conveyor belts etc., with rubber flaps (wherever possible) to prevent release of dust.
(h) provide effective dust suppression system comprising of spraying of fine water mist through special nozzles shall be carried out over the dust generation sources to suppress the dust cloud.
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WP No. 17014 of 2021
(i) make periodical cleaning of water spray nozzles to avoid choking.
(j) provide as an occupational safety, nose masks to all the workers.
(5) All stone crushing units shall provide adequate green belt comprising evergreen high foliage type of trees like neem, tamarind, gold mohar, flame of the forest and any other local varieties to restrict the spread of particulate matter."
9. Section 3 contemplates to obtain a licence for stone crushers. Sub-section (5) of Section 3 provides that the applicant shall obtain certificate of compliance of safer zone and consent for operation from the KSPCB. Sub- section (6) of Section 3 provides that the licencing authority after production of CFO from the KSPCB shall issue a licence subject to compliance of conditions specified in Section 6-A. Section 6-A provides conditions for grant of licence. Sub-section (2) of Section 6-A provides that licencing authority on production of CFO issued by the KSPCB shall grant a licence to the applicant. Section 6-A is not a pre-condition for getting prior
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WP No. 17014 of 2021approval from the Central Government authority pursuant to Section 2 of the Forest Conservation Act, 1980. In the instant case, admittedly, the petitioner has obtained certificate of compliance of safer zone and also consent for operation from the KSPCB and same was submitted to the licencing authority. The licencing authority without considering Section 6-A(2), insisted the petitioner for the permission from the Central Government under the provisions of the Forest Conservation Act on the ground that the approaching road to the crushing area is in the forest and hence approval from the Central Government is necessary for issuing Form-C.
10. It is not in dispute that during the year 2011, the Karnataka Regulation of Stone Crushers Act, 2011 (Amended Act, 2013) came into force. As per the Amended Act, it is the duty of the petitioner to get the crusher area declared as a safer zone and to obtain licence in Form-C to carry on the stone crusher business. In view of amended provision, the petitioner submitted an application on 19.02.2014, requesting respondent No.2 to
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WP No. 17014 of 2021declare the crushing area as a safer zone and also requested to issue licence in Form-C. The respondent No.2 being the licencing authority directed the team of officers comprising of Mines & Geology, Revenue, Forest and KSPCB departments to conduct joint inspection. The team of officers including the petitioner visited the land in question on 29.04.2014 and submitted a report on 29.04.2014, vide Annexure-C. From the perusal of Annexure-C, it discloses that the land bearing Sy.No.151 measuring 2 acres is situated in a safer zone and same may be declared as safer zone. The District Stone Crusher Licencing and Controlling Authority issued a certificate of compliance dated 21.08.2014, declaring the said area as a safer zone, subject to conditions stipulated in the Act. Respondent No.3 directed the petitioner to obtain consent for operation (CFO) from the KSPCB, thereafter, Form-C will be issued in favour of the petitioner. As per the directions of respondent No.3, the petitioner obtained CFO from the KSPCB on 28.02.2017, vide Annexure-F. The said consent was valid upto 30.09.2017. Inspite of
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WP No. 17014 of 2021obtaining CFO from the KSPCB, respondent No.2 did not issue a licence in Form-C in favour of the petitioner. The petitioner has obtained CFO on 21.09.2019, vide Annexure-H and 20.02.2021, vide Annexure-K. Inspite of obtaining CFO, respondent No.2 did not issue Form-C. On the contrary, meeting were held on 12.08.2021 and it was discussed in the meeting that the Assistant Conservator of Forest, Sirsi Division informed the Committee that the connecting road to reach the crusher area is the only road and the same is exclusively being used to reach the crusher area and the said road is not proceeding ahead to go to any other village and it is necessary to obtain permission from the forest department and the said submission was accepted by the Deputy Conservator of Forest, Karwar and informed that as per the provision of Forest Conservation Act, 1980, permission is required to be obtained.
11. As observed above, for issuing Form-C, there is no pre-requisite condition as per Section 6-A of the Act of
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WP No. 17014 of 20212011. The impugned proceedings are contrary to Section 6-A of the Act of 2011. Obtaining of permission from the Central Government under Section 2 of the Forest Conservation Act, 1980 arises only after issuing From-C by the licensing authority.
12. It is not in dispute that the connecting road to reach the crusher area is the only road which is exclusively being used to reach the crusher area. As per Section 2 of the Forest Conservation Act, if any forest area is being used for non-forest activities, it is necessary to seek a prior approval from the Central Government. Admittedly, in the present case, the petitioner has not obtained prior approval from the Central Government as required under Section 2 of the Act of 1980.
13. The learned Senior counsel for the petitioner submits that liberty may be reserved in favour of the petitioner to such a remedy as available in law. If the petitioner does so, the concerned authorities shall take
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WP No. 17014 of 2021necessary steps to consider the application of the petitioner in accordance with law.
14. In view of the above discussion, we proceed to pass the following:
ORDER The writ petition is allowed in part with the following directions:
1. The proceedings of the meeting of the District Stone Crusher Licensing Regulating Authority Committee dated 12.08.2021, placed on record at Annexure-P, is set aside insofar as the petitioner's case is concerned;
2. The respondent/State Government authority is directed to process the application submitted by the petitioner for grant of Form-C certificate, subject to the petitioner seeking necessary clearance from the Central Government authority pursuant to Section 2 of the Forest Conservation Act, 1980;
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WP No. 17014 of 2021
3. Petitioner is permitted to submit necessary application/representation to the competent authority of the Central Government within two weeks;
4. On receipt of such application/ representation, the competent authority to decide the same as expeditiously as possible and not later than 12 weeks from the date of receipt of the application/representation, needless to state, the application to be decided in accordance with the provisions of relevant laws and on the merits of the application. In view of disposal of the writ appeal, pending IAs., if any, do not survive for consideration and are accordingly disposed of.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE ssb/RD