Karnataka High Court
Nagaraja vs The State Of Karnataka on 4 December, 2012
Author: N Kumar
Bench: N Kumar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 4th Day of December 2012
PRESENT
THE HON'BLE MR. JUSTICE N KUMAR
AND
THE HON'BLE MR. JUSTICE B V PINTO
Writ Appeal No. 431 of 2008 (GM-KSSIDC)
c/w
Writ Petition No. 4946/2008 (GM-RES-PIL)
In Writ Appeal No. 431 of 2008 (GM-KSSIDC)
BETWEEN:
1. Nagaraja
28 years
S/o Narayanappa
Gajaannana Circle
Chintamani
2. Srinivas
Aged 33 years
S/o Krishnappa
Prop: Chintamani Handicrafts
Near Bus Stand
Chintamani
2
3. Devaraj
Aged 26 years
S/o Venkataramanappa
Prop: P.K.S. Enterprises
Bagapalli Road
Chintamani
4. Kaleemulla
S/o Hussain Sab
35 years
Prop: Horizen Packaging
Near APMC Market
Chelur Road
Chintamani ...Petitioners
(By Sri Shams Ahmed Pathan, Advocate)
AND:
1. The State of Karnataka
Represented by its Principal Secretary
Department of Industries & Commerce
Vidhana Soudha
Bangalore
2. The Karnataka State Small Industries
Development Corporation Ltd.,
Rajajinagar Industrial Estate
Bangalore
Represented by its Managing Director
3. The Mysorte Chip Board Ltd.,
Now known as Archidplay Industries Ltd.,
6/1, Flat 315, Mangalaya Residency
Bension Town, Bangalore
Represented by its Managing Director
3
4. The State Level Single Window
Clearance Committee (SLCWCC)
Karnataka Udyog Mitra
49, Khanija Bhavan South Wing
3rd Floor, Race Course Road
Bangalore
5. The Central Empowered Committee
Gate No.31, Jawaharlal Nehru Stadium
Lodhi Road, New Delhi - 111 003
Represented by its Member Secretary
6. State Level Committee
of Wood Based Industries
Aranya Bhawan, 18th Cross
Malleshwaram
Bangalore - 560 003
Represented by the
Principal Chief Conservator
of Forest and Chairman ...Respondents
(By Sri R.G. Kolle, Additional G.A. for R1;
Sri Puttige R. Ramesh, Advocate for R2 and R3;
M/s. Lexplexus, Advocates for R4;
R5 and R6 are served)
This Writ Appeal filed Under Section 4 of the Karnataka
High Court Act praying to set aside the order passed in the writ
Petition No.17423 of 2007 dated 14/01/2008.
In Writ Petition No. 4946/2008 (GM-RES-PIL)
BETWEEN:
1. Sulur Krishnamurthy Prabhakar
S/o S. Krishnamurthy
4
Aged about 36 years
R/o N.R. Layout
New Government Polytechnic
Chintamani
Chikkaballapur District
2. G. Venkatesh
S/o Gurappa
Aged about 30 years
Mallapalli Village
Chintamani Taluk
Chikkaballapur District ...Petitioners
(By Sri Sarat Chandra Bijai, Advocate)
AND:
1. The State of Karnataka
By its Principal Secretary
Dept. of Forest
Environment & Ecology
M.S. Building
Dr. Ambedkar Veedhi
Bangalore - 560 001
2. State Level Committee for Licensing
of Wood Based Industries
Aranya Bhavan, 18th Cross
Malleshwaram
Bangalore - 560 003
Represented by its Chairman
The Principal Chief Conservator
of Forest and Chairman
3. The Central Empowered Committee
Gate No.31, Jawaharlal Nehru Stadium
Lodhi Road, New Delhi - 110 003
5
Represented by its Member Secretary
4. Karnataka State Pollution Control Board
Parisara Bhavan, 4th & 5th Floor
49, Church Street
Bangalore - 560 001
Represented by its Member Secretary
5. Principal Secretary
Government of Karnataka
Department of Mines & Geology
49, Khanija Bhavan
Race Course Road
Bangalore - 560 001
6. Central Ground Water Authority
Represented by Commissioner & Director
Department of Mines & Geology
49, Khanija Bhavan
Race Course Road
Bangalore - 560 001
7. The Karnataka State Small Industries
Development Corporation Ltd.,
Rajajinagar Industrial Estate
Bangalore
Represented by its Managing Director
8. The State Level Single Window
Clearance Committee
Karnataka Udyog Mitra
49, Khanija Bhavan
South Wing, 3rd Floor
Race Course Road
Bangalore - 560 001
9. Archidply Industries Ltd.,
6
6/1, Flat 315, Mangalore Residency
Bension Town
Bangalore
Represented by its
Managing Director ...Respondents
(By Sri R.G. Kolle, A.G.A. for R1, R2 and R5;
Sri K. S. Ravi, CGSC for R3 and R6;
Sri S. Mahesh, Advocate for R4;
Sri Puttige R. Ramesh, Advocate for R7;
M/s. Lexplexus, Advocates for R8,
Sri M.G. Anirudh, Advocate for
Sri K.G. Raghavan,
M/s. Dua Associates, Advocates for R9;
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India, praying to quash the approval
granted to respondent-9 by respondent-8 vide subject No.4.12
in the Proceedings of the said respondent, held on 27-9-2007,
i.e, Annexure-A.
These Writ Appeal and writ petition coming on for
hearing this day, N. KUMAR J., delivered the following:
JUDGMENT
7 This writ appeal and the writ petition are disposed of by this common order, as substantially the facts of both the cases are one and the same.
2. Writ petitioners in W.P.No.17428/07 are all registered as Small Scale Industrial Units. They belong to Backward Class and Scheduled Caste categories. Their case is that they aspired to start Small Scale Industry at Chintamani. As they need land for setting up their industry, they were eagerly waiting for the news paper publication inviting applications by the second respondent. However, they came to know that the second respondent has allotted industrial land measuring 12.50 acres at Industrial Estate, Chintamani for a price of Rs.54,64,800-00 to the third respondent. If the land was converted into industrial plot for small scale industries, it would have fetched Rs.1,56,00,000-00 to the Government. Hence, it is a clear loss of Rs.1crore to the State. The allotment in favour of third respondent has deprived the petitioners and their like eagerly waiting for allotment of the Small Scale 8 Industrial plots. It is clear from Annexure-G that the third respondent is going to invest Rs.42.54 crores in the industry to be set up by them. Therefore it is not a small scale industry. It is a large scale industry. Therefore small scale industries land should not have been allotted to the third respondent. Therefore they sought for a writ quashing the allotment order of the third respondent dated 31.07.2007, Annexure-A.
3. The petitioners in W.P.No.4946/08 have preferred writ petition in public interest. Their case is that they are hailing from agricultural families and they are residents of Chintamani and are also the tax payers. They are public spirited citizens who are espousing the cause of the persons residing in their localities. They have referred to the allotment of industrial land in favour of third respondent, who is arrayed as 9th respondent in that writ petition. Their grievance is that the said industry is set up within a distance of 10 kms from the forest and thus they were ineligible for commencing the wood based industry as per the report of the Expert Committee 9 constituted for implementation of the Forest Conservation Act. They further contend that there is no assured source of water. Water is over exploited in Chintamani. If the third respondent is permitted to set up industry it would cause a heavy drain upon the scarce water resources meant for the person living in the locality. That apart, the said industry will have ill-effect on the environment. Further it was contended that the permission of Central Empowered Committee as well as the Expert Committee constituted in Karnataka are the competent authority to grant permission to set up the said wood based industry. Without their permission and authorization, no industry could be set up. The third respondent have set up an industry without requisite permission in accordance with law. Therefore on this ground they wanted the approval granted to set up the industry to the third respondent (9th respondent in the writ petition) be quashed.
4. It is relevant to point out at this stage that Writ Petition No.17428/07 was filed on 05.11.2007. It came to be 10 dismissed on 14.01.2008. Thereafter this writ petition seeking the very same relief purporting to be in public interest is filed on 25.03.2008. The Karnataka Small Scale Industries Development Corporation Limited, the second respondent in the first writ petition have filed detailed counter traversing the allegations made in the writ petition. Their specific case is that the Corporation established the industrial estate in Chintamani in the year 1985 over an area of 20.26 acres of land and constructed 20 different types of sheds. Unfortunately the demand for the plots/sheds was so low that even after nearly two decades, i.e., till 2002-2003, only 8 sheds came to be allotted and no entrepreneurs evinced any interest on the vacant plots. Confronted with the above factual position of poor response for occupancy at industrial estate at Chintamani, the Corporation was looking for some method by which monitory loss can be plugged and at the same time to create an industrial atmosphere in the area. At this juncture, the 4th respondent-State Level Single Window Clearance Committee suggested that if 12.5 acres of land is allotted to the 11 third respondent, then it will create employment opportunity to the locals and at the same time bring in industrial climate to the area. Thereafter the Board examined the said proposal and issued a letter of allotment dated 31.07.2007 to the third respondent. They further made it very clear that still they are in possession of 2.74 acres of land and if any entrepreneurs are in need of land, they would grant the same. They also undertook to allot the land in the event of petitioners in the writ petition if they make any application in the prescribed form and comply with the legal requirement.
5. The learned Single Judge after considering the rival contentions was of the view that as these petitioners are all small scale entrepreneurs who are willing to set up industries, if they are really in need of land, as the Corporation has assured allotment of land, it directed the Corporation to allot land in the event of their making application. He did not go into the question whether the allotment in favour of the third respondent is valid or legal, as in his opinion that was not 12 germane. Therefore with the aforesaid observation, he disposed of the writ petition. Aggrieved by the same, writ appeal is filed.
6. As stated earlier, after the dismissal of the writ petition, writ petition in public interest is filed with the aforesaid averments.
7. In the public interest litigation, the second respondent have reiterated the very same contentions in their statement of objections. The third respondent who is the 9th respondent in the public interest litigation, have filed detailed statement of objections. Their case is that their Company is a Public Company listed on the Bombay Stock Exchange and National Stock Exchange. They are primarily engaged in the business of manufacturing wood boards for over 30 years. They have two manufacturing Units, one in Rudrapur, Uttarkhand and the other being the Chintamani Unit. They have over 22 offices spread through-out India. As on 13 31.03.2012 in respect of Chintamani Unit, they have invested a sum of over Rs.25.91 Crores. Of the said investment Rs.10.87 Crore is towards building and Rs.12.61 Crores is towards machineries. They have borrowed a sum of over Rs.13.83 Crores for financing its Chintamani Unit. For the financial year 2011-2012 a sum of Rs.3.65 Crores as Excise duty and a sum of Rs.3.99 Crores as Sales Tax has been paid by them to the Government of Karnataka. They provide employment to over 200 persons directly or indirectly. At Chintamani Unit, 200 persons are employed. They have set out in detail their proposal, application made, recommendation granted, the requirement they have complied with and ultimately the allotment of the said land in their favour. They have stated that they have obtained all the requisite permission from the statutory authority as required under law. They have also stated that their monthly water requirement in they year 2009, 2010 and 2011 for industrial purpose has been 4,003 Kilo Litres, 4,140 Kilo Liters and 4,465 Kilo Liters respectively. Similarly, the domestic water for workers for the purpose of 14 bathing, cooking, drinking, washing, etc., has been 1,899 Kilo Liters, 2,190 Kilo Liters and 2,465 Kilo Liters, respectively. They contend that the manufacturing activity at Chintamani is not at all water intensive. The water is used for cooling of boilers and for mixing of resin. Substantial water is consumed for domestic purpose by the workers. They have also produced a flow chart. Further they contend that ground water is not the only source of water in Chintamani. Chintamani has two water dams by the name of Ambajidurga Tank and Kannampalli Tank from which water is supplied by the Chintamani City Municipal Corporation to the residents of Chintamani. It is only in Summer season the water level in the aforesaid tanks reduces considerably, lowering the water supply to Chintamani. Chintamani City Municipal Council supplies water to the inhabitants through piped water supply. Their Unit is situated at a distance of about 4 to 5 Kilometers from Chinatamani and there is no nexus of utilization of water by them affecting ground water availability in Chintamani. They have also pointed out the World Bank financed project of 15 Rs.1,364 Crores is being implemented to increase the availability of water to the residents of Chintamani. Therefore they contend that there is absolutely no merit in the writ petition and it is required to be set aside.
8. Sri. Shams Ahmed Pathan, learned Counsel for the appellant in W.A.No.431/08 submitted that the appellant did not seek for allotment of site. However, the learned Single Judge has issued direction for allotment of site. But he did not consider the core issue involved in the case namely cancellation of allotment made in favour of 3rd respondent, on the ground that it is contrary to law and also against public interest. Therefore he submits that the order of the learned Single Judge requires to be set aside.
9. Sri. Sharath Chandra Bijai, learned Counsel appearing for the petitioners in Public Interest Litigation submitted that writ petitions are filed on twin grounds. Firstly on the ground that requisite permission from competent 16 authority is not obtained before setting up the industry. Secondly there is no water available in Chintamani. If this industry is permitted to be established, it would seriously affect the interest of public of Chinatamani and they will be deprived of water for drinking purpose also. However, they fairly conceded that after the filing of the writ petition, it is brought to their notice that all the requisite permissions from Statutory authority are obtained and therefore, that ground is not available.
10. Per contra, the learned Counsel appearing for the Corporation submitted that the first writ petition is in reality a public interest litigation. Therefore the learned Judge who heard the matter had no jurisdiction to hear the said matter. However, taking a sympathetic view, the learned Single Judge has passed an order directing the Corporation to allot sites in their favour, if they satisfy the other requirements. In that view of the matter, there is no merit in this writ petition. In so far as the writ petition filed in public interest is concerned, he 17 submits that it lacks bonafides. As is clear from Para 10 of the writ petition, after the first writ petition was dismissed, this petition is filed. It shows that petitioners have not come to the Court with clean hands. Ulterior motive is clearly demonstrated. Therefore he submits that on this short ground, the writ petition is liable to be dismissed.
11. The learned Counsel appearing for the allotee, submitted that after the allotment, they have made huge investment, constructed building, employed 200 workers, indirectly supporting 2000 families. Though there is scarcity of water in Chintamani, it is not as if they have to depend only on ground water as sought to be made out. There are two tanks from which entire Chintamani town is supplied water. It is only in Summer, there will be scarcity of water. More over, this industry is not a water based industry. The requirement of water is minimum, for which they have made ample provision. The running of the industry in no way affects the residents of Chintamani Town as sought to be made out. Therefore he 18 submits that this case is an abuse of the judicial process and therefore he submits that petition is liable to be dismissed.
12. In the light of the aforesaid facts and rival contentions, it is clear that in Chintamani, the Corporation has sought to set up industries. For that purpose, they have acquired lands, formed industrial layout, formed industrial sites and also put up some construction. Even after a decade, hardly eight persons have availed the benefit. The land is left without being occupied, which has become unproductive. Maintenance of the land is difficult. It is in those circumstances, the Single Window Agency suggested to them to allot about 12.50 acres of land to allottee for setting up an industry. Allotment has been made in accordance with law. They have set up an industry providing employment to 200 persons indirectly supporting 2000 families. An attempt is made to create an atmosphere of industry in this remote part of Karnataka. It is true that in Chintamani, water is not available in plenty. In entire Chikkaballapur district there is water 19 scarcity let alone Chintamani. That is the reason why when people cannot depend on agriculture, they have to eke out living by other ways of employment. With this avowed object, the State has tried to set up industrial layout, so that there would be alternative employment to the residents of the town. Unfortunately, that attempt also did not yield any result. Though layout is formed, industrial sheds are available, industrial sites are available, there are no takers. Money spent in setting up these industrial layouts has virtually become a waste. It is in those circumstances, the third respondent who has come all the way from Uttarkhand has set up an wood based industry in this remote corner of Karnataka. They have already invested Rs.25.91 Crores. Rs.10.87 Crore worth building has come up, Rs.12.61 Crores worth machinery has been imported, production has commenced, about Rs.3.65 Crores has been paid by way of excise duty, Rs.3.99 Crores has been paid by way of sales tax to the Government exchequer. They have made alternative arrangement for the water requirement of the industry. They are not depending upon the 20 very source of water which is supplying water to the residents of Chintamani. Merely because there is some scarcity of water and industry needs large quantity of water, that is no ground to deny permission to set up an industry. Once industry is set up and investment is made, the industry knows how to procure its water and meet its water requirement. The material on record shows that substantial water is required for the purpose of bathing, drinking, etc., of its employees. In these circumstances, on the ground that sufficient water is not available and the industry would utilize substantial portion of water, the industry cannot be closed, permission cannot be refused or cancelled, quashing the permission granted for setting up of industry is not in public interest. This litigation which has been commenced is certainly not in public interest. It is against public interest.
Therefore taking pity on the petitioners in the first case and on the submission made by the Corporation that still there is 2.74 acres of land available, a direction wass issued to make 21 allotment, in the event they make a request and comply with all other legal requirement. It is submitted that till date, no application is filed. The cat is out of bag. In that view of the matter, there is absolutely no merit in both the writ petitions. Though this is a fit case where cost has to be imposed, taking into consideration that petitioners are coming from water scarce place, Chintamani, which is in remote corner of Karnataka, we do not propose to make their life miserable by imposing cost. Let them also not make others life miserable. There is no merit in these petition and appeal. Hence dismissed.
Sd/-
JUDGE Sd/-
JUDGE ksp/-