Karnataka High Court
Uday Shankar Bhat vs Union Of India And Ors. on 4 October, 2001
Equivalent citations: ILR2002KAR2056, 2002(1)KARLJ190
Author: A.V. Srinivasa Reddy
Bench: A.V. Srinivasa Reddy
ORDER A.V. Srinivasa Reddy, J.
1. The petitioner professing himself to be a social worker, environmentalist and a permanent resident of Kukkata Village in Belthangady Taluk of Dakshina Kannada District, interested in preservation, protection and conservation of environment, has filed the present petition, purportedly in public interest, praying for quashing of the circular bearing No. Gra Pa 349 Ji Pa Sa 98, dated 23-1-1999, produced as Annexure-B.
2. We have heard the learned Counsels for both sides.
3. The prayers sought in the writ petition are as follows:
(A) call for the records pertaining to the orders/circular bearing No. Gra Pa 349 Ji Pa Sa 98, dated 23-1-1999 (Annexure-B);
(B) issue a writ or direction, more in the nature of a writ of certiorari, quashing the order/circular bearing No. Gra Pa 349 Ji Pa Sa 98, dated 23-1-1999 (Annexure-B) by holding that the same wholly illegal, arbitrary, unjust, void ab initio, contrary to the provisions of the Act and violative of Article 14 of the Constitution of India;
(C) declare that Gram Panchayats alone are entitled to exercise the power vested in them by the provisions of the Karnataka Panchayat Raj Act, 1993 and that the State Government has no jurisdiction to interfere with the Gram Panchayat's power to grant or withhold permission as required under Section 66 of the Act; and (D) pass such other order/orders as is/are deemed fit, proper, necessary and expedient in the circumstances of the case.
4. The learned Counsel for the petitioner Mr. Pramod N. Kathavi drawing attention to the definition of the 'factory' as contained in Section 2(13) of the Karnataka Panchayat Raj Act, 1993 (the Act' for short) and Section 2(m) of the Factories Act, 1948 and also to the definition of the term 'manufacturing process' as contained in Section 2(k) of the Act, argued that a combined reading of the definition of the term, 'factory' as contained in the Act and the Factory Act clearly establishes that the process of laying the pipeline from Mangalore to Bangalore amounts to a manufacturing process and since more than ten workers would be involved in the laying of the pipes, the permission of the Panchayats for opening of a factory or commencing of any manufacturing process, as required under the Act, ought to have been obtained. To substantiate his submission, the learned Counsel placed reliance on the observations of Supreme Court in State of Punjab and Another v Hari Krishna Sharma.
5. In the light of the petition averments and the submissions made at the Bar, the question that arises for our consideration is:
Whether the proposed laying of the pipeline by respondent 4 would, necessarily, require a licence as mandated in Section 66 of the Act?
6. Section 66 of the Act mandates the permission of Gram Panchayat to construct or establish a factory, workshop or workplace in which it is proposed to employ steam power, water power or other mechanical power or electrical power. It reads:
"No person shall, without the permission of Gram Panchayat and except in accordance with the conditions specified in such permission.-
(a) construct or establish any factory, workshop or workplace in which it is proposed to employ steam power, water power or other mechanical power or electrical power; or
(b) install in any premises, any machinery or manufacturing plant driven by any power as aforesaid, not being machinery or manufacturing plant excepted by rules made by the Government under this Act".
The Act defines 'factory' as:
"Section 2(13).--Factory' means besides a factory as defined in the Factories Act, 1948 (Central Act 13 of 1948) any premises including the precincts thereof wherein any industrial manufacturing or trade process is carried on with the aid of steam, water, oil, gas, electrical or any form of power which is mechanically transmitted and is not generated by human or animal agency".
(emphasis supplied) The definition of the 'factory' under the Factories Act, 1948 is as follows:
"(i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, or
(ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily carried on, but does not include a mine subject to the operation of the Mines Act, 1952 (XXXV of 1952), or a mobile unit belonging to the armed forces of the Union, a railway running shed or a hotel, a restaurant or eating place".
7. According to the definition of 'factory' under the Factories Act, 1948 any place where manufacturing process is carried on with or without the aid of power would amount to a 'factory'. The term, "manufacturing process' is also defined by Section 2(k) of the Factories Act, 1948. It reads:
'Manufacturing process* means process for-
(i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal; or
(ii) pumping oil, water, sewage or any other substance; or
(iii) generating, transforming or transmitting power; or
(iv) composing types of printing, printing by letterpress, lithography, photogravure or other similar process or book binding; or
(v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; or
(vi) preserving or storing any article in cold storage".
8. Before we proceed to appreciate the rival contentions urged in the case touching the point in issue, we need to remind ourselves that the limited grievance of the petitioner herein is that the permission required under Section 66 of the Act has been wrongfully done away with by the State Government in terms of Annexure-B, the impugned circular. The petitioner is in no way aggrieved by the laying of the pipes nor is it his case that the State Government had usurped the power and itself granted the permission under Section 66 of the Act.
9. In Hari Krishna Sharma's case, supra, relied upon by the learned Counsel for the appellant, the question that arose for consideration of the Apex Court was, whether the State could arrogate to itself the power of the licensing authority and grant the licence having delegated the authority to grant licence to the statutory authority under the Punjab Cinemas (Regulations) Act, 1952. It is in this context the Apex Court, observed:
"The scheme of the Act indicates that there are two authorities which are expected to function under the Act, the licensing authority as well as the State Government. The basic fact in the scheme is that it is the licensing authority which is solely given the power to deal with the applications for licence in the first instance, and this basic position cannot be changed by the State Government by issuing any executive orders or by making rules under Section 9 of the Act".
In the instant case the situation that obtains is altogether different as there is no usurping of power by the State Government in that, it had not granted the permission required under Section 66 of the Act as had been done in the case of Hari Krishna Sharma, supra, nor did it deprive the panchayats of the authority to issue such licence. Herein, the State merely addressed a circular to the respondents 3 and 4 mentioning that there is no need to obtain the permission as required under Section 66 of the Act. The principle laid down in the case of Hari Krishna Sharma, supra, would have no application in the facts of the present case as it caters to a totally different situation and deals with a question of law which is not at all involved in this case. The issue that is principally involved in this case is whether the permission under Section 66 of the Act is, at all, required in order to lay the pipeline from Mangalore to Bangalore.
10. From a reading of Section 66 and the definition of factory as contained in the Act and the Factories Act, 1948 it becomes clear that a permission would become essential only for (i) establishing a factory or workplace employing mechanical, electrical, steam or water power; and (ii) installing any machinery or manufacturing plant.
11. Laying of pipeline through the lands coming under the various Gram Panchayats would not amount to constructing or establishing a factory, workshop or workplace. Constructing or establishing a factory, workshop or workplace would invariably call for putting up a premises of solid construction where the machines and men could be accommodated; providing the premises with steam, water, mechanical or electrical power to run the machines and operating such machinery with the ultimate object of manufacturing or preserving or modifying a product. The static placement of the pipes underground without any activity, whatsoever, being carried out on land, except for the free flow of oil through the pipeline without the intervention of any other outside force, would not amount to carrying on any process much less a 'manufacturing process'. The non-existence of any construction on land and the absence of any activity of any type on the entire stretch of land are factors which when weighed against the grounds urged by the petitioner in support of his case, convincingly establish that the assertion of the petitioner that the laying of pipe amounts to a manufacturing process is quite baseless. It would be rather illogical to equate the laying of pipes underground to establishing a factory or to carrying on a manufacturing process. An interpretation of a term to mean something totally different . which even the framers of the statute themselves could never have visualised or intended as coming within the purview of the definition of a term given by them, is absolutely impermissible in law.
12. All the activities coming within the sweep of Section 66 of the Act would be carried out only at Mangalore where a workplace has to be established to pump the oil with the help of power of whatever kind and at Bangalore where the oil so pumped would be received. Barring these two places, one at the pumping end in Mangalore and the other at the receiving end in Bangalore, no activity, much less an activity as contemplated in Section 66 of the Act, would be carried out on the entire stretch of land under which the pipeline would lie static. The passive existence of the pipeline underground without any activity being carried out on ground would not call for any permission as envisaged in Section 66 of the Act.
13. Relying on the definition of the term, 'manufacturing process' as contained in the Factories Act, 1948, the learned Counsel for the petitioner submitted that 'pumping of oil' being one of the processes included under Sub-clause (ii) of clause (k) of Section 2 of the Factories Act, the permission under Section 66 of the Act could not have been done away with by the State Government.
14. The question would be whether the mere laying of the pipes underground the supplying oil through them would tantamount to the process of pumping oil being undertaken over the entire stretch of land from Mangalore to Bangalore through which the pipeline runs. Pumping of oil would involve establishing a workplace where the men, machine and material could be positioned to function in tandem to transmit oil with or without the assistance of power. It is only where this activity takes place it could be said that the 'pumping of oil' is in progress. When such activity does not take place, to say that the free flow of oil underground amounts to 'pumping of oil' would amount to attributing a corrupt meaning to the said term. Essentially, 'manufacturing process' means creation of something anew or altering or changing the physical features of a thing or conveying or even preserving a thing in order to prevent the process of decay. None of these activities would be carried out on the entire stretch of land underneath which the pipeline would be laid. Hence, for the purpose of laying pipes between Mangalore and Bangalore, no permission as deemed under Section 66 of the Act would be necessary. In that view of the matter, we hold that the permission as contemplated under Section 66 of the Act was not required and the circular issued vide Annexure-B, impugned herein, which is to the very same effect cannot be characterised as illegal, arbitrary, unjust and contrary to the provisions of the Act.
The impugned circular Annexure-B, dated 23-1-1999 issued by the State Government clarifying that no permission from Gram Panchayats is required to be obtained under Section 66 of the Act for laying petroleum product pipelines was clearly within the competence of the State Government under the removal of difficulties of Section 321 of the Act.
15. Be that as it may, in the writ petition it is neither pleaded as a fact nor urged as a ground by the petitioner that his or the interest of any member of the public is in any way jeopardised or adversely affected by the laying of the pipeline from Mangalore to Bangalore. It is also not the case of the petitioner that such laying of the pipeline would endanger the environment. In fact, the entire thrust of the case as could be gathered from the petition averments and the submissions made at the Bar unambiguously reveal the stand of the petitioner that he is not aggrieved by the laying of the pipeline as such but is only aggrieved by the waiver of the licence by the State to be obtained from the Gram Panchayat under Section 66 of the Act. The Panchayats who are made party-respondents in the petition are themselves not aggrieved by the impugned circular Annexure-B. It is a condition precedent that before this Court is asked to grant a relief, the party seeking the relief must establish that he is aggrieved and that he would suffer an injury if the relief is not granted by this Court. Even assuming for the sake of argument that it was for the Panchayats to decide whether or not the licence under Section 66 is required and by issuing the impugned Annexure-B the State usurped the power vested in the Panchayats, unless it is shown by the petitioner that he is aggrieved by such wrongful exercise, no writ can lie against such exercise of power.
16. In Rajendra Singh v State of Madhya Pradesh and Others, the Apex Court while dealing with the question as to whether every violation of statutory rule, whether mandatory or directory, would invite interference by a Writ Court, held:
"While examining complaints of violation of statutory rules and conditions, it must be remembered that violation of each and every provision does not furnish a ground for the Court to interfere. The provision may be directory one or mandatory one. In the case of directory provisions, substantial compliance would be enough. Unless it is established that violation of a directory provision has resulted in loss and/or prejudice to the party, no interference is warranted. Even in the case of violation of a mandatory provision, interference does not follow as a matter of course".
It is well-settled law that violation of a statutory rule or condition alone would not furnish a ground for Court's interference under Articles 226 and 227 of the Constitution unless such violation results in loss or prejudice to a party. From the facts pleaded and the grounds urged in the writ petition, it is quite clear that the petitioner, at best, has suffered only a sentimental injury which cannot be vindicated in a public interest litigation.
17. The writ petition is totally ill-conceived and it is accordingly dismissed.