IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MAY 2019 PRESENT THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE P.S.DINESH KUMAR WRIT PETITION No.40831/2018 C/W WRIT PETITION No.33122/2017 WRIT PETITION No.37789/2016 (GM-MM-S) In WP No.40831/2018 BETWEEN:
A.C. SHIVALINGE GOWDA S/O LATE CHENNE GOWDA AGED ABOUT 63 YEARS No.962, 24TH MAIN, T BLOCK JAYANAGAR BENGALURU-560 041 ... PETITIONER (BY SHRI. R.G. KOLLE, ADVOCATE) AND:
1. STATE OF KARNATAKA REP. BY ITS CHIEF SECRETARY VIDHANA SOUDHA, BENGALURU-560 001 2. THE SECRETARY TO GOVT.
DEPARTMENT OF COMMERCE & INDUSTRIES VIKASA SOUDHA BENGALURU-560 001 3. THE DIRECTOR & COMMISSIONER DEPARTMENT OF MINES & GEOLOGY KHANIJA BHAVAN, RACE COURSE ROAD BENGALURU-560 001 4. THE ADDITIONAL CHIEF SECRETARY DEPARTMENT OF FORESTS, ECOLOGY & ENVIRONMENT GOVT. OF KARNATAKA, VIDHANA SOUDHA BENGALURU-560 001 5. THE DEPUTY CONSERVATOR OF FORESTS RAMANAGAR REGIONAL DIVISION GOVT. OF KARNATAKA, FOREST DEPARTMENT RAMANAGAR -562 159 6. THE DEPUTY CONSERVATOR OF FOREST BANNERGHATTA NATIONAL PARK GOVT. OF KARNATAKA, FOREST DEPARTMENT BENGALURU-560 083 7. UNION OF INDIA MINISTRY OF ENVIRONMENT FOREST & CLIMATE CHANGE NEW DELHI (RESPONDENT NO.7 AMENDED AS PER COURT ORDER DATED.15.3.19) ... RESPONDENTS (BY SHRI. VIKRAM, HUILGOL, HCGP FOR R1-R6; SHRI. KUMAR M.N, CGC FOR R7) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH OR SET ASIDE THE LETTER DATED 16.07.2018 ISSUED BY THE 2ND RESPONDENT SECRETARY, DIRECTING THE 3RD RESPONDENT DIRECTOR, TO OBTAIN AN OPINION FROM NATIONAL BOARD OF WILDLIFE, PRODUCED AT ANNEXURE-A IN RESPECT OF ECO SENSITIVE ZONE AND/OR 10 KM DEFAULT CLAUSE NOTIFICATION REFERRED IN GOA FOUNDATION CASE BY HON'BLE APEX COURT PRODUCED AT ANNEXURE-F AND / OR ETC., In WP No.33122/2017 BETWEEN:
SRI TAM TAM PEDDA GURUVA REDDY S/O PEDDAGURUVA REDDY AGED ABOUT 60 YEARS NO.1427, II CROSS, 18TH MAIN J.P.NAGAR II PHASE BANGALORE-560 078 ... PETITIONER (BY SHRI. D.L.N. RAO, SENIOR ADVOCATE FOR SMT. S.R. ANURADHA, ADVOCATE) AND:
1. STATE OF KARNATAKA BY ITS PRINCIPAL SECRETARY DEPARTMENT OF COMMERCE & INDUSTRIES M.S.BUILDING, BANGALORE-560 001 2. DIRECTOR OF MINES & GEOLOGY DEPARTMENT OF MINES & GEOLOGY KHANIJA BHAVAN RACE COURSE ROAD BANGALORE-560 001 3. UNION OF INDIA MINISTRY OF ENVIRONMENT FORESTS & CLIMATE CHANGE NEW DELHI (RESPONDENT NO.3 AMENDED AS PER COURT ORDER DATED:11.02.2019) ... RESPONDENTS (BY SHRI. VIKRAM HUILGOL. HCGP FOR R1 & R2; SHRI. C. SHASHIKANTHA, ASG FOR R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE R-1 TO ISSUE NOTIFICATION OF DEEMED EXTENSION OF Q.L. NO.767/2006 GRANTED IN FAVOUR OF THE PETITIONER IN VIEW OF KARNATAKA MINOR MINERAL CONCESSION [AMENDMENT] RULES 2016 BY DECLARING THAT THE ABOVE QUARRY LEASE IN STATUTORILY EXTENDED FOR 30 YEARS FROM DATE OF ORIGINAL GRANT.
In WP No.37789/2016 BETWEEN:
SRI SARDAR AHMED H.A S/O LATE ABDUL BASHEER AGED ABOUT 47 YEARS R/A HOOKUNDA VILLAGE UYYAMBALLI HOBLI KANAKAPURA TALUK RAMANAGARA DISTRICT ... PETITIONER (BY SHRI. ASHOK HARANAHALLI, SENIOR ADVOCATE FOR SHRI. SUBRAMANYA R, ADVOCATE) AND:
1. STATE OF KARNATAKA DEPARTMENT OF COMMERCE & INDUSTRIES VIKASA SOUDHA, DR. AMBEDKAR VEEDHI BANGALORE-560 001 REPRESENTED BY ITS PRINCIPAL SECRETARY 2. COMMISSIONER DEPARTMENT OF MINES & GEOLOGY KHANIJA BHAVAN RACE COURSE ROAD BANGALORE-560 001 3. DEPUTY DIRECTOR DEPARTMENT OF MINES & GEOLOGY 1ST FLOOR, PANCHAYAT BHAVAN RAMANAGARA DISTRICT 4. UNION OF INDIA MINISTRY OF ENVIRONMENT, FOREST & CLIMATE CHANGE, INDIRA PARYAVARAN BHAWAN, JORBAGH ROAD, ALIGANJ NEW DELHI-110 003 REPRESENTED BY ITS SECRETARY ... RESPONDENTS (BY SHRI. V.G. BHANUPRAKASH, AGA FOR R1-R3; SHRI. K.A. ARIGA, ADVOCATE FOR R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ENDORSEMENT DTD:21.6.2016/22.6.2016 (PRODUCED AS ANNEXURE-A) IN RESPECT OF SY NO.205/2.
THESE WRIT PETITIONS, HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 09.04.2019, COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, P.S.DINESH KUMAR J, PRONOUNCED THE FOLLOWING:-
ORDER A common question with regard to clearance under the Environmental Protection Act, 1986 and directing the petitioner to obtain clearance from the National Board for Wildlife are involved in these three writ petitions. Hence, they are heard simultaneously and disposed of by this common order.
Facts in W.P. No.37789/2016 2. This writ petition is filed with a prayer to set- aside endorsement dated June 22, 2016, whereby the Deputy Director of Mines and Geology has directed the petitioner to stop mining operation; and the order dated January 2, 2019 cancelling the work permit on the ground that the quarry fell within a radius of 1km. from Bannerghatta National Park Eco-Sensitive area.
3. Petitioner is the owner of Sy. No.205/2 situated in Harandyapanahalli village, Kanakapura Taluk, Ramanagara District having Black Granite deposits. He applied for working permit to extract the mineral. On January 14, 2016, work permit was issued to the petitioner under Rule 32 of Karnataka Minor Mineral Concession Rules, 1994(for short ‘KMMC Rules’). Thereafter petitioner started his mining operations. By order dated January 2, 2019, the Deputy Director has cancelled the work permit. Hence, this writ petition.
Facts in W.P. No.40831/2018 4. This writ petition is filed with a prayer to set- aside communications dated July 16, 2018 and August 4, 2018 directing the petitioner to obtain clearance from the National Board for Wildlife.
5. Petitioner was granted with quarrying lease bearing QL No.793 to extract Multi-colour granite in Sy. No.67 of Doddakoppa village, Kanakapura Taluka, Ramanagar District for a period of 10 years commencing from December 19, 2007. He approached this Court in W.P. No.38323/2017 with a prayer to direct the Mines and Geology Department to extend the validity period of his mining lease for a period of 30 years. The said writ petition was disposed of on September 5, 2017 with a direction to the Director of Mines and Geology to consider petitioner’s case. The same was not considered. He filed two subsequent writ petitions bearing W.Ps. No.54735/2017 and 352/2018. The said petitions were disposed of by recording Statement of the learned Government Advocate that petitioner’s case would be considered. By the impugned communication dated July 16, 2018 petitioner has been called upon to obtain clearance from the National Board for Wildlife. Feeling aggrieved, petitioner has presented this writ petition.
Facts in W.P. No.33122/2017 6. This writ petition is filed with a prayer to direct the State Government to issue a Notification of deemed extension of quarrying license bearing QL No.767/2006.
7. Petitioner was granted with the aforementioned quarrying lease under the KMMC Rules over an area of 29 acres in Sy. No.248 of Melmala village, Chamarajanagar Taluk to extract black granite with effect from August 20, 1996 to August 20, 2001. In 2001 he filed an application for renewal of lease and the same was rejected. Petitioner approached this Court in W.P. No.32567/2003. The same was disposed of on September 16, 2004 with a direction to execute the lease deed in three months. Accordingly, the lease was extended. In the year 2007, petitioner was asked to stop mining operation in view of a boundary dispute. Petitioner approached this Court again in W.P. No.14132/2007. During the pendency of the said writ petition boundary demarcation work was completed and petitioner was given possession of 9 acres out of 12 acres. On December 21, 2012, petitioner filed an application for renewal of lease. On March 9, 2015 petitioner’s request for working permission was rejected on the ground that the mining area fell within ‘tiger reserve’ zone. Petitioner challenged the same in W.P. 28436/2015 with a prayer to consider his renewal application. This Court disposed of the said writ petition on December 3, 2015 directing the respondents to consider petitioner’s case for renewal of mining lease. By communication dated November 2, 2016 the Director of Mines sought clarification from the State Government with regard to clearance from the National Board for Wildlife. Feeling aggrieved, petitioner has filed the instant writ petition.
8. Shri Ashok Haranahalli, learned Senior Advocate appearing for the petitioner in W.P.No.37789/2016 submitted that the Ministry of Environment, Forest & Climate Change, Government of India, has finalized the draft notification in the 33rd Eco-Sensitive Zone Expert Committee meeting held on February 28, 2019. In the draft Notification, Herandyapanhalli which finds place at Sl.No.61, the eco sensitive zone from the boundary of Bannerghatta National Park is mentioned as 100 meters. The Expert Committee has recommended for finalization of the draft notification. Admittedly, petitioners’ quarry is beyond 100 meters. Therefore, the impugned endorsement issued by the Deputy Director to stop mining operation is unsustainable in law.
9. Shri D.L.N.Rao, learned Senior Advocate submitted that the quarry belonging to the petitioner in W.P.No.33122/2017 is 2.8 Kms. from Melmala village. Adverting to paragraphs No.49, 50 & 52, in Goa Foundation Vs. Union of India and others1, he argued that in the absence of Notification by the Central Government, mining activity is prohibited only upto 1 Km. from the boundary of National Parks or the Wildlife Sanctuaries. Petitioner's quarry being beyond 1 Km., he is entitled for the benefit of directions contained in paragraph No.52 of Goa Foundation.
10. Shri Kolle, learned advocate for the petitioner in W.P.No.40831/2018 argued that the State Government have undertaken to consider petitioner’s application for renewal before this Court without any demure. However, after three rounds of litigation, State is refusing to renew the mining lease for want of clearance from National Board for Wildlife on the 1 (2014)6 SCC 590 ground that petitioner’s quarry falls within the Eco- sensitive zone. He argued that petitioner’s quarry is at a distance of 7 Kms. from Bannerghatta National Park and 3.2 Kms. from Cauvery Wildlife Sanctuary. He also argued that in view of directions contained in paragraph No.52 in Goa Foundation’s case, petitioner is entitled for renewal of lease as the quarry is situated beyond 1 Km.
11. Shri. K.A. Ariga, learned Advocate for the Central Government submitted that the draft notification has been finalized. The Ministry has sought clarification from the Election Commission of India for publishing ESZ Notification in the gazette. Based on the response from the Election Commission, the Notification will be issued.
12. Shri Kumar M.N., learned CGC for the Central Government, adverting to the Notification dated February 27, 2007, issued by the Ministry of Environment and Forest, contended that keeping in view the directions in Goa Foundation, the Ministry has decided that environmental clearance is required for non-forest activities within a radius of 10 Kms. from Wild Life Sanctuary or a National Park.
13. Shri Vikram Huilgol, learned HCGP for the State argued that the Final Notification is yet to be issued by the Ministry of Environment and Forest. In response to the argument on behalf of the petitioners that directions in paragraph No.52 of the Goa Foundation are binding, he urged that as on date, in view of Official Memorandum dated December 2, 2009, issued by the Ministry of Environment & Forest, environmental clearance is required for projects involving forest land which are located within 10 Kms. from National Park or Wildlife Sanctuary. He contended that the directions in paragraph No.52 in Goa Foundation cannot be construed as if no clearance is required for non-forest activities between 1 to 10 Kms. from National Park or Wildlife Sanctuary.
14. We have carefully considered rival contentions and perused the records.
15. The main contention of Shri.Ashok Haranahalli is that the quarry is situated beyond 1 Km. from the National Park. The Central Government have finalized the Notification. The only aspect that remains is issuance/publication of Notification. With this argument, it is urged that petitioner’s case merits consideration.
16. Shri.D.L.N.Rao’s principal contention is that unless Notification is issued, the mining operation is governed by the directions in Goa Foundation’s case. Publication of Notification in the gazette is mandatory and the same is not issued as on date. The mine in the case of petitioner whom he represents is situated at a distance of 2.8 kms., which is more than 1 km. from the Eco-sensitive zone. Therefore, petitioner is entitled for consideration of his prayer in the light of decision in Goa Foundation’s case.
17. Shri. Kolle’s contention is that though this Court has directed on earlier occasion to consider petitioner’s case for renewal of mining lease, the endorsement as per Annexure ‘A’ stating that the Eco- sensitive zone covers a radius of 10 km. is contrary to judgment in Goa Foundation’s case.
18. In Goa Foundation’s case, it is held that until Central Government issues a Notification under Rule 5 prohibiting mining operation in a certain area, there can be no prohibition under law to carry on mining activity beyond 1 km of boundaries of National Park and Wildlife Sanctuaries. According to the Central Government Advocate, Committee has recommended for finalization of draft Notification.
19. Therefore, in our considered view, the petitioners shall be governed by the Notification pursuant to 33rd ESZ Expert Committee Meeting declaring Eco-sensitive zone.
20. Respondents are directed to consider petitioners’ request in accordance with the Notification to be issued pursuant to 33rd ESZ Expert Committee Meeting and pass appropriate orders in accordance with law.
These writ petitions are accordingly disposed of.
In view of disposal of the writ petitions, pending interlocutory application in WP No.37789/2016 does not survive for consideration and the same stands disposed of.
No costs.
Sd/- JUDGE SPS Sd/- JUDGE