Karnataka High Court
Savitramma W/O. Parmeshwarappa vs State Of Karnataka on 31 July, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 31ST DAY OF JULY, 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No. 64843/2012 (GM-RES)
&
WRIT PETITION Nos. 65206-219/2012
BETWEEN:
1. Savitramma W/o. Parmeswarappa
Age: 45 Years, Occ: Stone Cutter
R/o. Kurugodu, Tq: Bellary,
Dist: Bellary.
2. V. Sunkama W/o. Thimmappa
Age: 45 Years, Occ: Stone Cutter
R/o. Kurugodu, Tq: Bellary,
Dist: Bellary.
3. V. Anandappa S/o. Sunkappa
Age: 60 Years, Occ: Stone Cutter
R/o. Kurugodu, Tq: Bellary,
Dist: Bellary.
4. P. Sakru Sab S/o. Sha Sab
Age: 48 Years, Occ: Stone Cutter
R/o. Kurugodu, Tq: Bellary,
Dist: Bellary.
5. V. Doddayellamma W/o. Hulagappa
Age: 55 Years, Occ: Stone Cutter
R/o. Kurugodu, Tq: Bellary,
Dist: Bellary.
2
6. V. Ramappa S/o. Dodda Hulagappa
Age: 43 Years, Occ: Stone Cutter
R/o. Kurugodu, Tq: Bellary,
Dist: Bellary.
7. V. Hulagappa S/o. Late Eranna
Age: 50 Years, Occ: Stone Cutter
R/o. Kurugodu, Tq: Bellary,
Dist: Bellary.
8. V. Srinivas S/o. Venkatramanappa
Age: 41 Years, Occ: Stone Cutter
R/o. Kurugodu, Tq: Bellary,
Dist: Bellary.
9. V.Basamma W/o. Adivappa
Age: 28 Years, Occ: Stone Cutter,
R/o. Kurugodu, Tq: Bellary,
Dist: Bellary.
10. V.Thimappa S/o. Basappa
Age: 45 Years, Occ: Stone Cutter,
R/o. Kurugodu, Tq: Bellary,
Dist: Bellary.
11. V.Basavaraju S/o. Gadeppa
Age: 53 Years, Occ: Stone Cutter,
R/o. Kurugodu, Tq: Bellary,
Dist: Bellary.
12. V.Lakshmamma W/o. Thippaiah
Age: 45 Years, Occ: Stone Cutter,
R/o. Kurugodu, Tq: Bellary,
Dist: Bellary.
13. Kulayappa @ Kullaiah S/o. Eranna
Age: 56 Years, Occ: Stone Cutter,
R/o. Kurugodu, Tq: Bellary,
Dist: Bellary.
3
14. Durganna S/o. Dodda Hulagappa
Age: 34 Years, Occ: Stone Cutter,
R/o. Kurugodu, Tq: Bellary,
Dist: Bellary.
15. K.Thippeswamy S/o. Thimmanayak
Age: 48 Years, Occ: Stone Cutter,
R/o. Kurugodu, Tq: Bellary,
Dist: Bellary.
... Petitioners
(By Sri : V. M. Sheelvant, Advocate)
And
1. State of Karnataka
Represented by its Secretary,
Department of Mines and Geology,
Vidhan Soudha, Bangalore.
2. The Deputy Commissioner,
Bellary.
3. Office of the Senior Geologist (Mines)
Department of Mines and Geology
Bellary.
4. Superintendent of Police
Bellary.
... Respondents
(By Sri P.H. Gotkhindi, Government Pleader)
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India, praying to issue a writ
in the nature of certiorari or any other writ order bearing No.
/ Gani/53-2011-12 Dated:19.07.2011 passed by respondent
No.2 produced at Annexure:A.
4
This Writ Petition coming on for orders this day, the
Court made the following:
ORDER
Heard the learned counsel for the petitioners and the learned Government Pleader for the respondents.
2. The present petitioners are commonly aggrieved and have jointly filed these writ petitions. They are residents of Kurugodu village in Bellary Taluk, Bellary District. They are stone cutters and it is their traditional avocation and it is their only source of income.
3. It is their case that they obtained necessary licenses from respondent No.1, namely, the Department of Mines and Geology. They belong to the Bhovi community, who are known to be traditionally engaged in cutting stone manually. They have been carrying on this activity on the strength of licenses, which were issued to them. They claim that they use man power and do not use any kind of blasting material or any other machinery. 5
4. It is their grievance that respondent No.2, the Deputy Commissioner of Bellary, has passed an order dated 19.07.2011 purportedly under Section 133 of the Code of Criminal Procedure, 1973 (hereinafter referred to 'Cr.P.C.', for brevity), issuing a ban on all kinds of quarrying, with or without explosives, in and around 500 metres of all monuments and other historical temples including the Basaveshwara Temple and Vajrabande Basaveswara Temple. The said order is at Annexure-A to the writ petition.
5. The petitioners contend that, they are holding valid licenses to cut stone manually, in the land in Sy. No. 666 of Kurugodu village, as already stated, and the stones so cut are used for construction of buildings. The petitioners have produced copies of those licenses at Annexures-B and B1 to B17. The petitioners have provided a list of persons, who carry on blasting activities, by recourse to the Right to Information Act, and the same is produced at Annexure-C to the writ petition. Pursuant 6 to the order of Deputy Commissioner at Annexure-A, respondent No.3, namely, the Office of the Senior Geologist (Mines), Department of Mines and Geology, Bellary, in turn, has cancelled the licenses in favour of the petitioners.
6. It is contended by the petitioners that the above named temples are not declared monuments, either under the provisions of Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereinafter referred to as '1958 Act', for brevity), or the Karnataka Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1961 (hereinafter referred to as '1961 Act', for brevity).
7. It is also the grievance of the petitioners that the Superintendent of Police, Bellary, on the strength of Annexure-A and in aid of the same, is compelling the petitioners not to carry on any kind of stone cutting activity and has also initiated criminal cases against the 7 petitioners. The petitioners, in turn, have made a representation to respondent No.2 requesting him to recall the order, insofar as the petitioners are concerned, while bringing to his attention that their activity would not pose any possible danger to the said monuments and the temples, and that they are denied of their very livelihood, if the ban should continue. It is in this background that the petitioners are before this Court.
8. The learned counsel for the petitioners would submit that, from a bare reading of Annexure-A, that the said order is issued on the representation of the Gram Panchayat members and the general public of Kurugodu village, who had, through their complaint claimed that they are historical monuments and buildings, such as Dodda Basaveshwara Temple and Vajrabande Basaveswara Temple, apart from other inscriptions and ancient caves, and it is their grievance that several persons have been indulging in large scale unauthorised quarrying activity by using explosives and heavy machine 8 in the vicinity of the said monuments, temples and buildings, and therefore, unless they are prevented from carrying on such activity, the said monuments would be permanently damaged and it is pursuant to these representations that the authority had made further inquiries and it was found necessary to ban all types of quarrying activities with or without explosives around 500 metres of the above area, and therefore, has passed the order.
9. It is contended by the learned counsel that, in terms of the 1958 Act, a protected area or a protected monument is defined, and the Central Government is empowered to declare an ancient monument to be of national importance. So also Section 20A provides for declaration of prohibited area and preventing carrying out public works and other works in the prohibited area. It is pointed out that the temples and other monuments, in question, have not been so declared under the said Act. 9
10. Similarly, insofar as the 1961 Act is concerned, the protected monuments are all ancient and historical monuments and all sites and remains, which have been declared by the Ancient Monuments Preservation Act, 1904, or the Ancient Monuments Preservation Act, 1337F, or the Karnataka Ancient Monuments Preservation Act, 1925, and those monuments, which may not have been declared under any law made by Parliament, to be of national importance, could be deemed to be ancient monuments and historical monuments, declared to be protected areas or monuments, as the case may be, under the 1961 Act. Section 19 of the 1961 Act has conferred power on the State Government to declare archaeological sites and remains to be protected areas. Therefore, it is not in dispute that the temples and monuments or other places of historical importance, which is subject matter of Annexure-A, has not been declared under any law as a protected or prohibited area or a protected monument under Section 19 of the 1961 Act. Therefore, the authority 10 having proceeded to issue the ban in respect of the activity carried on by the petitioner is without reference to any legal provision or other prohibition, and hence, the prevention of the petitioners from carrying on their legitimate activity would take away a fundamental right vested in them and it is therefore, bad in law.
11. The learned counsel would submit that, as already stated, the petitioners are manual stone cutters and do not use any kind of machinery or explosives. The petitioners can be placed on terms as to a strict prohibition or using of any kind of explosives or other machinery, apart from manual tools to carry on their activity of quarrying. It is reiterated that, by virtue of the order issued at Annexure-A, the Department of Mines and Geology, has refused to entertain any application seeking renewal of their licenses and even revision petitions preferred against such refusal of licenses have been stonewalled, with reference to Annexure-A, and therefore, the petitioners are left with no alternative remedy, but to 11 seek appropriate directions of this Court, insofar as the Annexure-A being made applicable to them, treating the petitioners on par with other persons, who may be indulging in activity, that poses a danger to ancient monuments, even though they may not be notified or otherwise declared as ancient monuments in law.
12. The learned counsel for the petitioners would submit that the petitioners are fully conscious of the need for preservation of the ancient and historical monuments and hence, they are before this Court only seeking to carry on their activity, which would not pose any danger to any such monuments, and the order at Annexure-A, on the other hand, specifies that, any activity without explosives also is prohibited, would prevent these petitioners from carrying on their legitimate activity, which provides their only source of livelihood, and hence, seeks appropriate directions, interalia, to quash Annexure-A. 12
13. The learned Government Pleader has filed statement of objections contending that the petitioners have no locus standi to file the present writ petitions as they have no vested right to carry on any activity in the concerned area. He would point out that, in respect of each of the petitioners with the necessary particulars that though the petitioners had been initially conferred with the right to carry on stone cutting in the vicinity, those licenses have expired due to efflux of time and the same has not been renewed as there were no applications filed by the petitioners in some cases and in some other cases, applications having been filed, have not been followed up and in yet other cases, where applications had been rejected, revision petitions were filed and those also have been rejected and such orders have attained finality, and therefore, none of the petitioners has any vested right to question Annexure-A, as any such right conferred on them is no longer in existence and in the absence of license or permission to carry on any activity in the vicinity, it is immaterial that there is a ban prohibiting such activity. 13 Therefore, the petitions do not merit consideration and are to be rejected.
14. The learned Government Pleader would further contend that the question as to whether the temples and monuments are notified or not, is a matter that requires to be addressed by the Department of Archaeology and in the absence of the Department of Archaeology, to accept the contention of petitioners that the temples and monuments are not protected or in prohibited areas, and hence, the order is without jurisdiction, is not tenable in the absence of the proper and necessary party, namely the Department of Archaeology, either under the 1958 Act or 1961 Act. It is only the Department of Mines and Geology, which has been made a party to these proceedings, and hence, he would submit that there is no substance in the contention that Annexure-A is without jurisdiction as the area in question has not been declared as a prohibited area or as an ancient monument. He would further submit that any concession shown to the petitioners may result in serious 14 and irreparable damage being caused to ancient monuments that are sought to be protected by respondent No.2, and hence, there is no illegality or malafides that can be attributed to respondent No.2, and therefore, Annexure-A cannot be construed as being illegal or without jurisdiction. The said authority has acted with responsibility and in order to protect ancient monuments, which admittedly are in existence even according to the petitioners. It is also pointed out by the learned Government Pleader that the license issued in favour of the petitioners had expired more than one year ago in many of the cases of the petitioners and it is inexplicable that the petitioners have remained without taking any further steps in this regard and it is only now that the writ petitions are filed. It would, therefore, raise a strong suspicion of the petitioners being used by other vested interests, who may have a stake in the quarrying of the stone, and therefore, this Court would have to proceed with the extreme caution in conferring any kind of 15 concession on the petitioners, and hence, would seek that the petition be dismissed.
15. By way of reply, the learned counsel for the petitioners would submit that insofar as the contention that the Department of Archaeology has not been made as a party is concerned, it may not be relevant for, the petitioners have, under the provisions of Right to Information Act, made representations to the said Department seeking to ascertain whether the monuments and structures, in question, were declared as prohibited areas or ancient monuments and whether were under the protection of the Department. The said Department has issued an endorsement clarifying that they are not so declared and are not declared as prohibited areas, under the law, and therefore, the objection raised as to the petition being bad for non-joinder is not a contention that can be a ground on which the petition could be rejected, and hence, would submit that, in view of, the very 16 livelihood of the petitioners being at stake, the petition be allowed.
16. In the light of the above rival contentions, the intention of respondent No.2 in having issued Annexure-A cannot be characterised as being malafide. The intention was certainly to protect ancient monuments including the temples in question. On the basis of representations made by the Gram Panchayat and the nearby villagers, the insistence on the requirement that the monument should have been declared as prohibited area or protected monument under the respective legislation and in the absence of which he would have no jurisdiction to issue such a ban is a legal contention that would have to be weighed against the public interest and the protection of such monuments and Structures , which represent the culture of this Country. Therefore, even if the same is not with reference to a specific provision of law or Rule, it cannot be said that the same is illegal, merely because, it prevents the petitioners from carrying on the activity, 17 which may cause damage to those monuments and Structures. However, the said respondent No.2 at the same time ought to ensure that the order does not take away the livelihood of persons, who may be engaged in activity, which in fact, does not cause any kind of damage or harm to the said monuments and Structures. It is this aspect of the matter, which has not been addressed by the said respondent No.2, as there is no indication in his order that such an exercise has been carried out insofar as the present petitioners are concerned, the order worded as it is to indicate that the ban would apply to any activity carried on with or without explosives would take within its scope persons, such as the petitioners as well and the consequence of the same has been felt by the petitioners, as already narrated herein above. In that, their applications for renewal of their licenses have been rejected and any further remedies that the petitioners could have exercised have also been foreclosed and the same has been with reference to the impugned order. Therefore, their case has been foreclosed without their 18 grievance being addressed by virtue of the same, and to that extent it may require a review by respondent No.2, insofar as the present petitioners are concerned. In any event, as rightly pointed out by the learned Government Pleader, the licenses under which the petitioners were permitted to carry on their activity have not been issued in favour of the petitioners. By efflux of time, the same have expired and have not been renewed at the relevant time, and now the quarrying activity is banned. The further remedy by way of revision, is also met with the same fate, again with reference to the impugned order. Therefore, the petitioners should carry on such activity only on complying with the procedural formalities of seeking and obtaining renewal of their licenses. The contention of the learned Government Pleader that any such renewal of licenses or seeking reconsideration of their rejection would have to be carried out within a specified time and even that time having elapsed, the petitioners have no right at all, is not a contention that can be accepted. The petitioners have been denied their claim as already stated, 19 directly with reference to the impugned order and to that extent, their case requires to be reconsidered. Therefore, while ensuring that any activity carried on by the petitioners would not cause any kind of damage or harm to the monuments, temples and other inscriptions, in the vicinity, the respondents namely, the Department of Mines and Geology and the Deputy Commissioner, Bellary District, shall reconsider the case of the petitioners.
17. Insofar as the applications for renewal or revision petitions that may be filed insofar as the rejection of their licenses are concerned and after addressing the ground reality, insofar as their contention that their activity does not make use of any explosives or other machinery, the authorities may after ensuring that the petitioners adhere to such a restriction of not using any explosives or machinery and after placing checks and balances in that regard, by recourse to such measures, as may be available at the command of the respondents, the case of the petitioners shall be considered for renewal of 20 their licenses and to permit them to carry on their activity, if the same does not pose any danger or harm to the concerned monuments, inscriptions and temples and other buildings.
18. Accordingly, the writ petitions are allowed in part. It is declared that insofar as the impugned order is concerned, it shall not prevent the petitioners from approaching the respondents with the appropriate requisitions or other petitions enabling them to carry on their activity in accordance with law.
Sd/ JUDGE hnm/-