Karnataka High Court
Shivaraj vs State Of Karnataka on 8 July, 2024
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WP No. 11379 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. N. V. ANJARIA, CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT PETITION No. 11379 OF 2021 (GM-MM_S)
BETWEEN:
SHIVARAJ,
S/O SHARNAPPA PUJARI,
AGED ABOUT 54 YEARS,
TAVERGERA VILLAGE,
KALBURGI-585101.
...PETITIONER
(BY SRI SAILESH S. KATAREY, ADVOCATE)
AND:
Digitally
signed by
VALLI 1. STATE OF KARNATAKA,
MARIMUTHU THROUGH ITS PRINCIPAL SECRETARY,
Location: High DEPARTMENT OF MINES AND GEOLOGY,
Court of
Karnataka M. S. BUILDING,
BANGALORE-560001.
2. THE DEPUTY DIRECTOR,
DEPARTMENT OF MINES AND GEOLOGY,
VIKASA SOUDHA,
3RD FLOOR, ROOM No.27,
KALABURAGI-585101.
3. THE DEPUTY COMMISSIONER,
DEPARTMENT OF MINES AND GEOLOGY,
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WP No. 11379 of 2021
VIKASA SOUDHA,
3RD FLOOR, ROOM No.27,
KALBURAGI-585101.
4. THE ENVIRONMENT OFFICER,
KARNATAKA STATE POLLUTION
CONTROL BOARD,
PLOT No.12, Sy No.19/P,
MANASAFDAR LAYOUT,
MG ROAD, SANTHRASWADI,
KALAURAGI-585101.
5. THE ISHWARI STONE CRUSHERS,
SY. No.106/13, TAVERGERA VILLAGE,
KALABURAGI,
REPRESENTED BY ITS PROPRIETOR.
6. THE ASSISTANT EXECUTIVE COMMISSIONER,
GESCOM,
KALABURAGI-585101.
...RESPONDENTS
(BY SRI S.S. MAHENDRA, AGA FOR R1 TO R3;
SRI P. CHIDANANDA, ADVOCATE FOR R4;
RESPONDENTS 5 & 6 ARE SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT, DIRECTION
OR AN ORDER DIRECTING THE 2ND AND 3RD RESPONDENTS TO
CANCEL THE LICENCE IN FAVOR OF THE 5TH RESPONDENT AND
ISSUE A WRIT, DIRECTION OR ORDER IN THE NATURE OF
MANDAMUS DIRECTING THE 4TH RESPONDENT TO TAKE
SUITABLE ACTION AGAINST THE 5TH RESPONDENT FOR CAUSING
AIR, WATER AND SOUND POLLUTION.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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WP No. 11379 of 2021
CORAM: HON'BLE THE CHIEF JUSTICE MR. JUSTICE
N. V. ANJARIA
and
HON'BLE MR. JUSTICE K. V. ARAVIND
ORAL ORDER
(PER: HON'BLE MR. JUSTICE K. V. ARAVIND) The instant petition under Article 226 of the Constitution of India is for the following reliefs, "(a) Issue a writ, direction or an order directing the 2nd and 3rd respondents to cancel the license issued in favour of the 5th respondent.
(b) Issue a writ, direction or order in the nature of mandamus directing the 4th respondent to take suitable action against the 5th respondent for causing air, water and sound pollution.
(c) Issue a writ, direction or order directing the 7th respondent to disconnect the electricity supply to the 5th respondent establishment.
(d) For cost and such other relief this Hon'ble Court deems fit in the interest of justice and equity."
2. Heard learned advocate Mr. Sailesh S.Katarey for the petitioner, learned Additional Government Advocate Mr. S.S. Mahendra for respondent Nos.1 to 3 and learned advocate Mr. P.Chidananda for respondent No.4.
Respondent Nos.5 and 6 are served and unrepresented. -4-
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3. The petitioner claims to be the owner of land bearing survey No.107/3, Tavergera Village, Kalaburagi. It is stated that he is carrying on agricultural activities in the said land. Respondent No.5 is carrying on stone crushing activities in the adjacent land. Due to stone crushing operations, the dust, hazardous chemicals and such other pollutants emanating from crushing activity are spoiling the crops grown by the petitioner in the adjacent land.
4. Learned advocate for the petitioner submits that the inspection report submitted along with memo dated 31.08.2021 is not in compliance with the directions of this Court dated 02.07.2021. The direction to respondent No.4 is to visit the stone crushing unit to examine the nuisance and pollution created by the crushing unit. The inspection has been conducted when the crushing unit was not in operation. The observations made with regard to the crushing unit complying the conditions for grant of licence cannot be accepted.
5. Learned advocate with reference to the inspection report filed by the State along with Statement of Objections submits that the spot inspection report at Annexure-R5, Mahazar report at Annexure-R7 have been drawn when the crushing unit was not in operation. It is further submitted that mahazar report Annexure-R7 -5- NC: 2024:KHC:29110-DB WP No. 11379 of 2021 is clear that the petitioner is carrying on agricultural activities and has grown Togari Dhal. As per Section 6(2)(g) of the Karnataka Regulation of Stone Crushers Act, 2011 [hereinafter referred to as 'Act' for short], the stone crusher shall not be established within one kilometer from the limits of any private land which is shown as cultivable land. In the present case, the report submitted by the respondent would show that the adjacent land is under cultivation. The licence for stone crusher is in violation of the conditions.
6. Apart from the above submissions, learned advocate further submits that the reports at Annexures R5 and R7 are without notice to the petitioner. The said reports are not in conformity with the directions of this Court.
7. Per contra, learned Government Advocate submits that the report dated 10.08.2021 was submitted by respondent No.4- Karnataka State Pollution Control Board as per the directions of this Court dated 02.07.2021. In view of the direction of this Court by order dated 14.02.2023, inspection has been carried out by respondent Nos.2 and 3 and reports are submitted at Annexures- R4, R5 and R7. Learned Government Advocate further submits that the stone crushing licence is issued on due compliance of the -6- NC: 2024:KHC:29110-DB WP No. 11379 of 2021 Act. During the inspection, violation of any condition for grant of licence is not found. It is further submitted that the inspection and the reports were in the presence of the petitioner.
8. Learned Government Advocate further submits that the licence in favour of respondent No.5 has expired during pendency of this writ petition i.e. in the month of March, 2024. The application for renewal is pending in view of this writ petition.
9. We have considered the rival contentions of both the parties, perused the papers and the reports filed.
10. This Court by order dated 02.07.2021 directed respondent No.4-Karnataka State Pollution Control Board to visit the stone crushing unit in question and submit a report on the allegations made in the petition.
11. In compliance of the directions of this Court dated 02.07.2021, inspection was conducted on 09.08.2021 and 10.08.2021. Report was submitted on 10.08.2021. Learned Government Advocate for respondent No.4 placed the report dated 10.08.2021 along with the memo dated 31.08.2021. -7-
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12. This Court, considering the aspects stated in the report submitted along with the memo dated 31.08.2021, directed respondent No.2-Deputy Commissioner, Department of Mines and Geology, Kalaburagi, to visit the crusher unit personally or to direct the Senior officers attached to his office to visit the stone crusher unit situated in Sy.No.106/13 of Tavergera Village, Kalaburagi Taluk and District and to carryout inspection and submit a report.
13. Respondent No.2 in compliance of the order dated 14.02.2023, inspected the land in the presence of the petitioner on 27.02.2023 at 11.00 a.m. The spot inspection report has been submitted, which reads as under, " When conducted inspection of the said complained Crusher Unit established area as per the points mentioned in Section 6(2) of the Karnataka Regulation of Stone Crushers Act, 2011, observed the following:
1. Got confirmed that Teen Sheets have been provided around the said Crusher Unit.
2. Got confirmed that plants/plantation has been grown in the area of the said Crusher Unit.-8-
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3. Got confirmed that Teen Sheets have been provided to the Conveyor Belts to prevent dust going outside.
4. Got confirmed that the primary and secondary units of the said crusher unit, water sprinklers have been provided and the said water sprinklers were in operation (Photograph copies enclosed).
5. The said area has been declared as Safer Zone for establishment of stone crusher unit and Crusher License in Form-C has been issued for a period of 05 years from 08-08-2019 to 31.03.2024.
➤ Further, when conducted Joint Inspection of 3.07 Acres of land of the complainant Shivaraj Poojari, S/o.Sharanappa Poojari (Petitioner) in Sy.No. 107/*3 of Tavaregera Village, Kalaburagi Taluk & District, adjacent to the said Crusher Unit in Sy.No. 16/*/13 over an extent of 1.00 Acre, the half portion in the east, is waste land and it is found that no cultivation has been done and in the remaining area, the dust of the crusher unit mixed with mud was found partly here and there. Further, it was found that there was 01 stone well in the said land and at present it was filled with water and it was found that adjacent to the stone well area, Toor Dal Seeds were sown in a part of the area.
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NC: 2024:KHC:29110-DB WP No. 11379 of 2021 ➤ The Joint Spot Inspection of the above complained area has been conducted on 27.02.2023 from 11.30 am to 1-30 pm by the officers present in the presence of the crusher unit owner and the complainant and accordingly taken photographs and Mahazar has been prepared."
14. This Court perused the spot inspection report submitted by respondent No.2.
15. Respondent No.2 again conducted spot inspection on 01.08.2023 and has drawn mahazar. The mahazar report is placed on record as Annexure-7 to the compliance affidavit.
16. The spot inspection report dated 27.02.2023 and the mahazar report submitted by respondent No.2 conducted in the presence of the petitioner states that respondent No.5 has carried out the activities of crushing of stone in compliance of the Act.
17. Section 6 of the Act is amended with effect from 26.12.2013 prescribing conditions to declare safer zone. Section 6 of the Act prior to amendment reads as under;
"6. Conditions for grant of license.
License shall be granted under this Act subject to the following conditions, namely:-
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NC: 2024:KHC:29110-DB WP No. 11379 of 2021 (1) The stone crusher shall not be established outside the safer zone;
(2) The safer zone shall be within a location of,-
(a) two kilometers away from the National Highways, habitats, temples, schools and river;
(b) one and a half kilometers away from the State Highway;
(c) five hundred meters away from the link roads;
(d) eight kilometers away from the limits of Municipal corporations;
(e) four kilometers away from the limits of District Head Quarters;
(f) two kilometers away from the boundary limits of a Taluk Head Quarters;
(g) one kilometer away from the limits of an inhabited village or any land recorded as forest in Government records or any private land which is shown as cultivable land in the revenue records;
(3) No two safer zones shall be located within a radius of fifty kilometers.
(4) The Licensing Authority shall, within a period of four months from the date of commencement of this Act, identify and declare the safer zones by notification specifying the area and limits within their jurisdiction:
Provided that the Licensing Authority may in exceptional circumstances and for the reasons
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(5) The Licensing Authority shall send the proposal of declaration of safer zone under subsection (4), to the pollution control Board for its certification. On receipt of the proposal by the pollution control board or where three months have lapsed from the date of proposal and no communication has been received by the Licensing Authority, the Licensing Authority shall by notification declare the safer zone in accordance with the proposal.
(6) Wash stone crusher unit shall be located in a minimum area of one acre of land including stone crushers belonging to State Government or the Pinhead as the case may be.
(7) Each unit shall abide by the pollution control measures or such other safeguards as may be prescribed by the Karnataka State Pollution Control board from time to time.
(8) Each unit shall conform to the Noise (Regulations and Control) Rules, 2000.
(9) The 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 thereunder."
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18. Section 6 of the Act, after amendment reads as under;
"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:-
(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 (and fifty meter from the limits of) 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 a 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
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NC: 2024:KHC:29110-DB WP No. 11379 of 2021 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.
Explanation- For the purpose of this Act, any habitation, school, temples or road coming up subsequently to declaration of safer zone shall not affect the operation or continuance of such declaration and shall not affect any extension of licence under Section.5"
19. Section 6-A of the Act, imposes a condition for grant of licence for stone crushing. The same reads as under, "6-A. Conditions for grant of Licence.- (1) No Licence 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:-
(1) each unit shall abide by the provisions of the Air (Prevention and Control of Pollution) Act, 1981 and the
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NC: 2024:KHC:29110-DB WP No. 11379 of 2021 Environmental 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. (2A) Every licencee shall pay such an annual regulation fee as may be prescribed, with effect from the date of commencement of the Karnataka Regulation of Stone Crushers (Amendment) Act, 2020.
(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.
(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.
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(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.
(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."
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20. The contention of the petitioner that stone crusher shall not be established within one kilometer from the limits of private land which is shown as cultivable lands in the revenue records is not acceptable. Section 6 of the Act has undergone amendment by Act No.64/2013 with effect from 26.12.2013.
21. The petitioner could not point out any serious defect or violation or error in the reports submitted by respondent No.2.
22. This Court has also gone through the spot inspection report and mahazar report placed on record. The report indicates that the stone crushing unit by respondent No.5 is presently in conformity with the relevant requirements.
23. Be that as it may. The licence in favour of respondent no.5 has expired during pendency of this petition. The application for renewal is pending consideration. It is observed that the grievance of the petitioner may be considered when the renewal application is examined. It is needless to observe that the observations in the report submitted before this Court in compliance of the directions shall also be taken into consideration.
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24. For all the aforesaid reasons and considerations, the Court is not inclined to entertain the petition.
It is also noticed and taken into account that the licence has already expired on 31.03.2024.
While parting, as submitted by learned Government Advocate, it is observed that while considering the application filed for renewal of the licence, all the grievances of the petitioner shall be considered to be decided in accordance with law.
25. With such limited observations, the writ petition is dismissed.
Sd/-
(N. V. ANJARIA) CHIEF JUSTICE Sd/-
(K. V. ARAVIND) JUDGE MV List No.: 1 Sl No.: 32