IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.44781/2017(GM-CPC) BETWEEN:
DINESH R., AGED 33 YEARS, S/O. RAJA MOOLYA, RESIDING AT BOLUGUDDE, BANNAMPALLI,PERDOOR VILLAGE, POST, PERDOOR 576124.
UDUPI TALUK AND DISTRICT.
... PETITIONER (BY SRI ASHOK HARANAHALLI, SENIOR ADVOCATE FOR SRI SUDESH KUMAR ACHARYA U., ADVOCATE) AND:
PREMA SHEDTHI, AGED 56 YEARS, D/O. CHINNAPPA SHETTY, GARDARBETTU, BANNAMPALLI, PERDOOR VILLAGE, POST, PERDOOR 576124, UDUPI TALUK AND DISTRICT.
(BY SRI SACHIN B. S., ADVOCATE FOR CAVEATOR/RESPONDENT) ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 6.9.2017 PASSED IN M.A.NO.26/2017 ON THE FILE OF THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE, UDUPI VIDE ANNEXURE-A CONFIRMING THE ORDER DATED 17.8.2017 PASSED ON IA NO.II IN O.S.NO.522/2017 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI VIDE ANNEXURE-B.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The defendant filed the present writ petition against the order dated 6.9.2017 made in M.A. No.26/2017 on the file of the Addl. Senior Civil Judge, Udupi dismissing the appeal and confirming the order dated 17.8.2017 on I.A. No.II made in O.S. No.522/2017 on the file of the III Addl. Civil Judge & JMFC, Udupi granting Temporary Injunction restraining the defendant, his men, workers, agents, successors and all those persons claiming through or under him from conducting quarrying activities near the plaint ‘A’ schedule property.
2. The respondent who is the plaintiff before the trial Court filed the suit for the relief of Permanent Injunction against the defendant from conducting quarrying activities near the immovable property bearing Sy.No.494/4, measuring 2 acres situated at Perdoor villge of Udupi taluk morefully described in the plaint as ‘A’ schedule property, contending that she is the owner in possession and enjoyment of the ‘A’ schedule property and the defendant alongwith his men and friends visited the Government land near her house in the ‘A’ schedule property and started digging and blasting granite stone heap close to her house and the said blast impact shaken the foundation of her house and caused crack in few areas of the house. It is further contended by the plaintiff that the said blasting and digging of granite stones by the defendant and his men was at a distance of about 100-150 meters from his house and therefore he has filed the suit for the reliefs sought for.
3. The defendant filed the written statement and denied the plaint averments and contended that the present suit filed by the plaintiff is a counter-blast of O.S. No.448/2017 which was filed by the defendant against the close relatives of the plaintiff. The trial Court granted exparte injunction in favour of the present defendant on 4.7.2017 in the said suit. The said suit is pending for adjudication between the parties. It is further contended that the defendant initiated quarrying activities only in accordance with the licence issued by the concerned authorities including Panchayath and he has not disobeyed any of the said orders. The defendant also contended that the plaint ‘A’ schedule property is a dry vacant land and residential house of the plaintiff is not situated in the said property and contended that the residential house of the plaintiff is situated in Sy.No.36/32 of Perdoor village, Udupi taluk. Therefore sought for dismissal of the suit.
4. The plaintiff filed I.A. No.II for Temporary Injunction under Order 39 Rules 1 and 2 of Code of Civil Procedure reiterating the averments made in the plaint. The same was resisted by the defendant by filing the written statement. The trial Court considering the application and the objections by an order dated 17.8.2017 allowed the application filed by the plaintiff and granted an order of injunction restraining the defendant from conducting quarrying activities near the plaint ‘A’ schedule property, which is the subject matter of the appeal before the appellate Court in M.A. No.26/2017. The appellate Court after hearing the parties by the impugned order dated 6.9.2107 dismissed the appeal. Hence the defendant filed the present writ petition.
5. Heard the learned counsel for the parties.
6. Sri Ashok Haranahalli, learned senior counsel appearing for the petitioner – defendant contended that the impugned orders passed by the Courts below are not speaking orders and not supported by any valid reasons. The Lower Appellate Court misdirected itself by coming to a wrong conclusion that if the stone quarry is permitted in the leasehold property, it would create trouble to school children, agriculturists and other villagers, which are not all the case of the plaintiff as could be seen from the averments in the plaint. He further contended that the Courts below failed to notice that the present suit is nothing but counter-blast of the suit filed by the defendant in O.S. No.448/2017. The Courts below failed to notice that in case of violation of lease conditions by the petitioner – defendant, it is always open to the aggrieved parties to approach the competent authority constituted under the Karnataka Minor Minerals Concession Rules, 1994 and as per Rule 6(3), the competent authority is entitled to take suitable action including termination of the lease. The respondent – plaintiff has not approached the said authority. Therefore he is not entitled to file the suit and the same is against the provisions of Section 41(h) of the Specific Relief Act, 1963.
7. The learned senior counsel further contended that the house of the respondent – plaintiff is not situated in the plaint schedule property at all and the contention of the respondent – plaintiff that the said house is situated within 150 meters is not supported by any evidence on record.
Therefore learned senior counsel contended that it is not open for the Courts below to restrain the defendant from conducting quarrying activities near the plaint ‘A’ schedule property. Therefore he sought to allow the present writ petition by quashing the impugned orders passed by the Courts below.
8. Per contra, Sri Sachin, learned Counsel appearing for the plaintiff-respondent sought to justify the impugned order and would contend that in the guise of obtaining licence from the competent authority, the petitioner is quarrying by blasting and digging granite stones without permission thereby affecting the house property of the plaintiff. He also contended that, in the NOC issued by the concerned Grama Panchayath on 10.3.2014 condition No.5 imposes that defendant shall not use any blasting materials with the assistance of missions. Therefore, he submitted that the impugned order passed by the Court below restraining the defendant from doing quarrying activities is just and proper and hence, this Court cannot interfere under Article 227 of the Constitution of India.
9. Having heard the learned counsel for both the parties, it is an undisputed fact that the plaintiff had filed a suit for permanent injunction in respect of the suit schedule property seeking permanent injunction against the defendant restraining him from conducting quarrying activities near ‘A’ schedule property situated at Perdoor village, Udupi Taluk and District. The same is disputed by the defendant by filing the written statement that in the property where quarrying activities are carried out, there is no house property and that he is quarrying at 350 mts. away from the suit schedule property of the plaintiff. They are not doing illegal activities of quarrying. He has obtained quarrying lease licence on 25.5.2017 for a period of 20 years and quarrying activities are carried out in terms of the license. Admittedly, the license is not cancelled by any competent authority and they have not violated any of the conditions imposed in the license in terms of the Karnataka Minor Minerals Concession Rules, 1994 issued by the Grama Panchayat while issuing NOC.
10. The trial Court considering the application and objections has recorded a finding that the matter requires full fledged trial and the property of the plaintiff and other vicinities in and around the quarrying property needs to be preserved without any harm. Further the trial Court has also observed that as the school children are alleged to be moving to the very next of the said quarry place, the defendant is permitted to remove only stones through chains and not by blasting; that the conditions imposed to the defendant clearly speaks of it; that by the averments made by him, he has violated the said conditions. It has also observed that the Courts cannot ask the parties to approach the concerned authority when there is an illegality and violation on the face of record and the Courts can suomotu take notice and curb the violations in the interest of general public.
11. The trial Court has further recorded a finding that in order to protect the property of the plaintiff and general public health and agricultural property of the vicinity and mainly the younger school children, the defendant needs to be restrained from carrying out the quarrying activities by using blasts and if the application is allowed, no hardship will be caused to the defendant and if it is not allowed, certainly the plaintiff will be put to untold hardship and irreparable loss. In that view of the matter, the trial Court has proceeded to pass the impugned order by allowing I.A.II and restrained the defendant, his men, women, workers, agents, successors and all those persons claiming through or under him from conducting quarrying activities near the plaint ‘A’ schedule property which is nothing but granting the main relief while deciding the application. The same is impermissible under law.
12. When the trial Court has observed that the blasting activities affects the property of the plaintiff, other vicinity and school going children, it ought to have restrained the defendant from quarrying activities by doing blasting activities and not to carry on quarrying activities in violation of the terms of the license issued by the competent authority. The same is also affirmed by the Lower Appellate Court reiterating the findings recorded by the authorities which reads as under:
“On perusal of the order passed by the learned Trial Judge, no doubt it is true that, defendant merely stated in the written statement, even blasting is made, no inconvenience or health hazardous would cause to the plaintiff. But the learned Trial Judge observed in his order that, defendant has admitted that, he is understanding blasting activities in the disputed property. Though the finding by the trial Court is incorrect, but even statement and also in the appeal memo, that he is not taking blasting activities in the suit property, taking into account and applying the judicial notice with regard to noise pollution, life threat, pollution to the atmosphere, the Lower Appellate Authority, I am of the opinion that the order of the trial court cannot be said to be perverse, illegal, capricious and apparent illegal. The trial court has properly and correctly applied the fundamental principles of grant of injunction and rightly granted injunction in favour of the plaintiff.”
13. Both the Courts below have concurrently held that the defendant is permitted to remove the stones only through chains and not by blasting. The conditions imposed on him clearly speaks of it. If it is so, the Courts below ought to have permitted the defendant to conduct quarrying activities in terms of the lease without blasting and without affecting the house of the plaintiff, if the house is existing in the suit schedule property. The same having not been done, the impugned orders passed by the Courts below require modification.
14. For the reasons stated above, writ petition is allowed in part. The impugned orders passed by the Courts below are modified. I.A.II filed by the plaintiff under Order XXXIX Rules 1 and 2 and Section 94(2) of the Code of Civil Procedure is allowed in part restraining the defendant from conducting quarrying activities by blasting without permission from the competent authority.
15. However, it is made clear that if the defendant wants to proceed with the blasting activities, he will have to seek permission from the competent authority if it is beyond 200 mts without affecting the house, if any, situated in the suit schedule property. The defendant is also permitted to conduct quarrying activities in accordance with the license issued by the competent authority. If any need arises for blasting, the defendant has to obtain permission from the competent authority. Only on such condition, the authority has to consider whether there is any house situated in the suit schedule property and whether it affects the house property of the plaintiff while granting license.
Ordered accordingly.
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