Partly allowed

Sri a v. Basavaraju v the State of Karnataka

Karnataka HC24 Jun 2021WP/49800/2019

Case brief

AI extract

What is this about?

Writ petitioners sought intervention to prevent industrial allottees from drilling borewells to preserve groundwater. The court held that only the Ground Water Authority under the 2011 Act has power to grant drilling permissions in notified areas, discharging the respondents of liability in this regard.

What did the court decide?

Prayer Nos. 1 and 2 disposed of by discharging respondents of liability to grant drilling permissions. Prayer No. 3 (water supply) left to State policy.

Sri a v Basavaraju Vs the State of Karnataka — Environment and Pollution | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF JUNE, 2021

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PRESENT

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THE HON’BLE MR. JUSTICE ARAVIND KUMAR

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AND

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THE HON’BLE MR. JUSTICE N.S. SANJAY GOWDA

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W.P. NO.49800/2019 (LA-KIADB)

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BETWEEN:

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SRI. A.V. BASAVARAJU S/O LATE EREGOWDA AGED ABOUT 75 YEARS AVVERAHALLI VILLAGE BILLANAKOTE POST SOMPURA HOBLI NELAMANGALA TALUK BENGALURU RURAL DISTRICT - 562 111.

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SRI. RAGHAVENDRA M.B S/O BASVARAJAIAH AGED ABOUT 41 YEARS MACHANAHALLI VILLAGE BILLANAKOTE BENGALURU RURAL - 562 111.

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SRI. UMESHA S/O THAMMAYAPPA AGED ABOUT 49 YEARS MACHANAHALLI VILLAGE BILLANAKOTE, BENGALURU RURAL - 562 111.

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SRI. H.S. SIDDALINGAMURTHY S/O SHVIANNA AGED ABOUT 30 YEARS HONNENAHALLI, BILLANAKOTE BENGALURU RURAL - 562 111.

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...PETITIONERS

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(BY SRI. K.S. MALLIKARJUNAIAH, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA DEPARTMENT OF COMMERCE AND INDUSTRIES M.S. BUILDING, AMEBDKAR VEEDHI BENGALURU - 560 001 REPRESENTED BY ITS PRINCIPAL SECRETARY.

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THE CHIEF EXECUTIVE OFFICER KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD ARAVIND BHAVAN, OPP RBI, NRUPATHUNGA ROAD BEGNALURU - 560 001.

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THE SPECIAL LAND ACQUISITION OFFICER, OFFICE-II, KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD, NO.49, KHANIJABHAVAN EAST WING, 5TH FLOOR RACECOURSE ROAD BENGALURU - 560 001.

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HONNENAHALLI GRAMA PANCHAYATH HONNEHALLI, SOMPURA HOBLI NELAMANGALA TALUK BENGALURU RURAL DISTRICT - 562 111 REPRESENTED BY ITS PANCHAYATH DEVELOPMENT OFFICER.

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…RESPONDENTS

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(BY SRI. G.V. SHASHI KUMAR, A.G.A, FOR R-1, R-5 & R-6; SRI. SOMASHEKHAR, ADVOCATE FOR SRI. B.B. PATIL, ADVOCATE FOR R-2 & FOR C/R-3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS TO PRESERVE GROUND WATER FOR ONLY LOCAL RESIDENTS OF THE VILLAGERS FOR DRINKING PURPOSES, WITHOUT DRILLING OF BORE WELLS BY THE ALLOTEES OF THE PLOTS. AS PER THE LETTER DATED 17.08.2019 ISSUED BY SENIOR GEOLOGIST

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UNDERGROUND WATER OFFICE BENGALURU RURAL DISTRICT VIDE ANNEXURE.H.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, ARAVIND KUMAR J, MADE THE FOLLOWING:

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O R D E R

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Petitioners who are the residents of Averahalli, Machanahalli and Honnenahalli of Nelamangala Taluk, Bangalore Rural District, have filed this public interest petition seeking for a writ of mandamus for respondents for preserving the groundwater for local residents of the villages for drinking purposes without permitting drilling of borewell by the allottees of the industrial plots, which have been carved out in the lands situated at Sompura, Kengal Kempohalli, Gottigere, K.G.Srinivasapura, Baragenahalli, Machanahalli, Edehalli, Billakote, Averahalli and Honnenahalli measuring about 1000 acres, which was acquired by respondent Nos.2 and 3 for industrial purposes.

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On account of allottees digging borewells in

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the plots allotted to them by the Karnataka Industrial Area Development Board (for short 'KIADB') petitioners are before this Court contending that second respondent

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(KIADB) without any authority of law has granted permission to drill borewell in the plots allotted to the allottees-industries. It is further contended large scale drilling of borewells in the allotted plots would result in depletion of water level in the surrounding villages and there would be scarcity of drinking water in the villages which is already being faced by them.

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It is also contended that Government has to

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provide water facilities to the industries and it should not permit the allottees to drill the borewells and use the groundwater for any industrial purposes. By drawing the attention of the Court to the communication dated 03/04.07.2019 (Annexure-B) issued to one of the allottees whereunder permission has been granted by the second respondent to the said allottee for drilling the borewell, it is contended that said power exercised by the second respondent is without authority of law. It is further alleged that day in and out second respondent is granting permission to allottees to dig the borewells in the allotted plots and fourth respondent is also issuing

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no objection certificate in this regard without authority of law.

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Contending though several representations have been submitted to the authorities no action has been taken and Circular dated 15.05.2013 (Annexure-G) issued by the Principal Secretary, Karnataka Groundwater Authority is also being ignored by the second respondent, petitioners have sought for following prayers:

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(i) Issue writ of mandamus directing the Respondents to preserve ground water for only local residents of the Villagers for drinking purposes, without drilling of bore wells by the allottees of the plots. As per the letter No.G.ANAK/Ben.Ru/HiBhuvi/ Ne.Ta/2019-20/182-184 dated 17.08.2019 issued by Senior Geologist underground water office, Bengaluru Rural District vide Annexure-H .

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(ii) Direct the Respondents not to allow the allotees of the plots to permit for drilling of bore wells in the allotted plots to the industries in the acquired lands for industrial purposes.

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(iii) Direct the Respondents to supply water as per the plan to bring water from Bugudanahalli Tank as early as possible in order to avoid scarcity of under Groundwater.

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On being notified respondents have appeared. Respondent Nos.2 and 3 have filed their statement of objections denying the averments made in the petition. It is admitted by respondent Nos.2 and 3 that permission has been granted to lessee to sink the borewell in the allotted plot namely, in favour of M/s.Locozo Technologies Pvt. Ltd. (allottee). It is contended that such permission has been granted with certain conditions and there is no violation of terms of lease cum sale agreement. In other words, respondent Nos.2 and 3 have contended that they have power to grant permission to the allottees to sink borewells in the plots allotted by KIADB. The State viz., respondent Nos.1, 5 and 6 have filed their statement of objections contending interalia that several talukas in the State were notified as underground water over exploited taluks as empowered under Section 10(3) of The Karnataka Ground Water (Regulation and Control of Development and Management) Act, 2011 (for short '2011 Act') and a notification dated 22.09.2017 and 05.05.2020 have been issued specifying the areas, which come under the

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control of Ground Water Authority vide Annexures-R1 to R3. It is also stated that in pursuance to 2011 Act a committee has been constituted known as "Karnataka Ground Water Authority" consisting of members from various departments which is headed by Secretary to Government/In-charge of Department of Water Resources, Minor Irrigation, Government of Karnataka, as Chairman and areas notified in the aforesaid notifications are within the purview of the authority for purpose of Regulation and Control of Groundwater. The manner, mode and method of applications received by the said authority for grant of permission, which would be dealt with by said authority, has been narrated sequentially. It is also contended that Karnataka Ground Water Authority has been granting permission to the applicants under said enactment on several conditions, which are in the best interest of protecting groundwater and in case of any violation reported, immediate action would be taken by the concerned Authority. Hence, they have sought for dismissal of the writ petition.

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We have heard the arguments of

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Sri.K.S.Mallikarjunaiah, learned counsel appearing for petitioners, Sri.G.V.Shashikumar, learned AGA appearing for respondent Nos.1, 5 and 6, Sri.Somashekhar, learned counsel appearing on behalf of Sri.B.B.Patil for respondent Nos.2 and caveator/respondent No.3, Ms.Oshin Varghese, learned counsel appearing on behalf of Sri.P.B.Achappa for respondent No.4. Perused the records.

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The cause espoused in the writ petition

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cannot be construed as a private cause or not being a public cause. It would definitely fall within the four corners of definition of "public cause". Petitioners are seeking for groundwater being preserved to posterity for being utilized to the needs of general public and in particular for drinking purposes. In this background, when the facts on hand are examined it would clearly indicate that State being alive to the situation of ground water level depleting and having felt necessity to maintain the ground water level for being preserved, has enacted Act 2011 and constantly notifications are issued

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declaring certain areas as ground water over exploited areas. In the memo which came to be filed on 13.01.2021 by the State notification dated 05.05.2020 came to be produced, which would clearly disclose that certain areas in Nelamangala Taluk was declared as "ground water over exploited areas" and industrial areas of Dabaspet, 4th phase (Averahalli Industrial area) formed by KIADB was also declared as one such area vide notification dated 05.05.2020.

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Under Section 3 of the Act 2011, Ground Water Authority had been constituted on 16.03.2012 and for effective implementation of said enactment and rules made thereunder District Level Committees have been constituted by notification dated 31.12.2012 and the officers named therein have been nominated as the members of said Authority. This Court by order dated 23.11.2020 after having taken notice of the contentions raised by learned counsel appearing for petitioners had observed:

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"Sum and substance of the grievance of the petitioners is that on account of sinking/drilling of bore wells by the allotees

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it has resulted in water table in the surrounding area getting denuded and drinking water having become scarce. The Government of Karnataka thought fit to provide for regulation and control of development and management of ground water in the State and has enacted The Karnataka Ground Water (Regulation and Control of Development and Management) Act, 2011 (for short `the Act, 2011). Under Section 10 (2) of the Act, 2011 the authority constituted under the Act which includes City Municipal Corporation, Municipal Council, Town Panchayat, Zilla Panchayat, Taluk Panchayat, Grama Panchayat, Industrial Township Authority, Bangalore Development Authority, Improvement Board, Urban Development Authority, Planning Authority, Bangalore Water Supply and Sewerage Board, Karnataka Urban Water Supply and Sewerage Board, has to notify the area for the purpose of the Act. It is no doubt true that in the instant case the petitioners have not placed on record the notification issued in this regard by the State Government. Learned Government Advocate is also unable to place on record as to whether such notification is issued or not. In other words, for lack of instructions learned Government Advocate is unable to state whether such notification is issued or not. However, the communication dated nil (Annexure H) issued by the Senior Geologist addressed to the Board would indicate that for the purposes of drinking water to industrial area developed by the Board a pipe line has been provided from Bugudanahalli tank, Tumkur city to Dabospet industrial area (subject matter of this writ petition) and on account of certain technical reasons said project is not progressing. In this scenario the allotees are

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said to be digging bore wells in the plots allotted to them by Board on the strength of approval given by Board."

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In the statement of objections filed by the respondent Nos.1, 5 and 6 it is categorically stated that as per the notification dated 16.08.2012 whereunder several talukas in the State were notified as ground water over exploited talukas and had issued notification pursuant to Section 10(3) of the said Act 2011 and subsequent notifications dated 22.09.2017 and 05.05.2017 issued would indicate the eagerness of State to protect the ground water. The State has taken a clear stand in its statement of objection that whenever there is request made for grant of promotion to drill borewell in the areas which have been declared as "over exploited areas", said application will have to be necessarily placed before the committee and on the basis of said request and verification of averments made thereunder, the Senior Geologist would place the application along with technical report to the District Level Committee headed by the District Commissioner and the Committee would pass appropriate orders either permitting or rejecting the

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application based on facts obtained. It is further stated that ground water authority had considered the request made by M/s.Locozo Technologies Pvt. Ltd., an allottee of industrial site by KIADB and had granted permission subject to certain conditions on 12.06.2019 under which communication second respondent has forwarded the application of said allottee to the Committee for being considered and it is thereafter by communication dated 12.06.2019 (Annexure-R5), permission has been accorded to the allottee. In fact, State itself has clearly stated in the statement of objections filed vide paragraph 13 that neither the second respondent nor fourth respondent are the competent authorities either to grant permission or to consider any application filed by applicants seeking permission for digging borewells in the areas, which have been notified as "over exploited areas". Thus, it would emerge from the pleadings that authority which is competent to issue permission or grant certificate for drilling borewells in terms of the Act 2011 is the Ground Water Authority alone and as such said

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Authority alone can exercise power under the said Act for grant of permission to drill borewells in the notified areas.

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In the light of aforesaid finding recorded by

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us, Prayer Nos.1 and 2 sought for in the writ petition stands disposed of and we make it explicitly clear that except the Authority constituted under the Act 2011, neither respondent Nos.2 and 3 or 4 would be empowered to grant, intimate or communicate, the applicants either granting permission or approval to drill borewells in the notified areas. Insofar as Prayer No.3 is concerned, it is a matter of policy which the State will have to take with regard to bringing water from Bugudanahalli tank and except observing that State shall make all endeavours to implement the policy, if any, resolved in this regard, we do not propose to issue any writ in this regard. It has to be further observed that Ground Water Authority, which has been constituted under the Act 2011 would necessarily take action against any activity carried out by any authorities or individuals in drilling borewells in the notified areas in contravention of the Act 2011 or drilling borewell in the absence of permission/approval granted

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by the Ground Water Authority as and when it is brought to the notice of said authority. If the petitioners were to submit representations or file complaint before the Ground Water Authority bringing it to their notice of any such anomaly, irregularity or illegality, they shall take the statute namely, comply with Section 24 which mandates that an enquiry is to be made and action in respect of such contravention shall be taken and outcome of such decision shall be intimated to the petitioner/s.

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With this observation we dispose of this writ petition.

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Pending applications, if any, stands consigned to

records.

SD/JUDGE

SD/-

JUDGE