Dismissed

M. Samiulla v. the Deputy Commissioner

Karnataka HC18 Dec 2021WP/5912/2020

Case brief

AI extract

What is this about?

This PIL sought interim directions against a quarry owner for violating mining rules and polluting a water channel near a mosque. The court dismissed the petition, finding the alleged channel was a sewage drain and the petitioner lacked bona fides to represent neighboring villagers as a non-resident.

What did the court decide?

The writ petition was dismissed on the grounds of lack of bona fides and absence of evidence supporting the pollution allegations.

M. Samiulla Vs the Deputy Commissioner — 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 18^TH DAY OF DECEMBER, 2021

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PRESENT

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THE HON’BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

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AND

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THE HON’BLE MR.JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO.5912/2020 (GM-MMS-PIL)

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BETWEEN:

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M. SAMIULLA, S/O LATE K. ABDUL MUJEER, AGED ABOUT 50 YEARS, R/AT NO.1263, RAJIV NAGAR, 2^ND STAGE, CHRISTIAN COLONY, 6^TH CROSS, NEAR KABIR SCHOOL, MYSURU-570019. … PETITIONER

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[BY SRI DIVYATEJ H.N., ADVOCATE FOR SRI RAHAMATHULLA KOTHWAL, ADVOCATE]

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AND:

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THE DEPUTY COMMISSIONER, CHAMARAJANAGAR DISTRICT, CHAMRAJANAGAR-571 313.

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SUPERINTENDENT OF POLICE, OFFICE OF THE SUPERINTENDENT OF POLICE, B.RACHAIAH DOUBLE ROAD, CHAMARAJANAGAR TOWN-571 313.

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THE DEPARTMENT OF MINES AND GEOLOGY, ZILLAADALITHA BHAVAN, DOUBLE ROAD, CHAMRAJNAGAR-571313, REPRESENTED BY SENIOR GEOLOGIST,

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THE ASSISTANT COMMISSIONER, KOLLEGAL SUB DIVISION, KOLLEGAL-571 440.

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THE TAHASILDAR, YELANDUR TALUK, YELANDUR-571 441.

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KARIKALLU NANJASHETTY, S/O LATE NANJASHETTY, URUF, BISI PAISA, Y.K.MOLE, GRAMA, NEAR GOVERNMENT PRIMARY SCHOOL, YELANDUR TALUK, CHAMRAJNAGAR DISTRICT-571 441.

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… RESPONDENTS

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[BY SRI S.S.MAHENDRA, AGA FOR R-1 TO R-5; SMT.B.V. VIDYULATHA, ADVOCATE FOR R-6]

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-1 TO R-5 TO INITIATE APPROPRIATE ACTION AGAINST R-6 FOR CARRYING MINING AND BLASTING ACTIVITY IN VIOLATION OF RULE 6(2) OF THE KARNATAKA MINOR MINERAL CONCESSION RULES, 1994.

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THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, SACHIN SHANKAR MAGADUM J., MADE THE FOLLOWING:

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O R D E R

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The captioned writ petition is filed seeking the following reliefs:

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“(a) To issue a writ in the nature of mandamus, directing the respondent Nos.1 to 5 to initiate appropriate action against respondent No.6 for carrying mining and blasting activity in violation

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of Rule 6(2) of the Karnataka Minor Mineral Concession Rules, 1994;

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(b) Issue such other writ, order or direction which this Hon’ble Court deems fit under the facts and circumstances of the case.”

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The petitioner claims to be a RTI activist and claimed he has been working for the welfare of the people of land bearing Sy.No.710/1 situated at Yeragamballi Village, Yelanduru Taluk, Chamrajnagara District. The petitioner has contended in that the land bearing Sy.No.710/1 and 711/4, there is an Idgah Wall, which is a religious site for the muslim people living in the nearby vicinity. The grievance of the petitioner before this Court is that respondent No.6 is carrying quarrying activity which is just at a distance of 15 meters from Yeragamballi Village. The petitioner claims that village is home for many residents and there is channel of water that passes by adjoining to the quarry. The petitioner has specifically contended that this channel carries water for the irrigation of agricultural lands in the said village. It is the contention of the petitioner that on account of mining activities, there is a lot of dust and is causing pollution in the air and also in

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surrounding area which in turn is polluting the water channel and thereby causing health hazards to the villagers and also the villagers’ livestock. On the said grounds, the present public interest litigation is said to be filed.

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This Court by order dated 09.08.2021

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appointed a Court Commissioner. Pursuant to order passed by this Court, the respondent authorities were directed to carry out the spot inspection and submit a report. In compliance of the order dated 09.08.2021 passed by this Court, the respondent authorities carried out the inspection and placed on record the report. However, the said report was disputed by the petitioner and therefore this Court deemed it fit to have an independent spot inspection and therefore the Court Commissioner was appointed by this Court by order dated 09.08.2021. The Court Commissioner in compliance of the order passed by this Court, visited the spot and in the presence of the parties, conducted the spot inspection and submitted a detailed spot inspection report. This Court having perused the spot inspection submitted by the Court Commissioner was of the view that the affidavit filed by the authorities while submitting the report is

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factually incorrect and a false affidavit is filed and therefore an explanation was sought by this Court by order dated 13.09.2021. This Court was pleased to issue a show cause notice to the Deputy Director, Department of Mines and Geology, Chamarajanagara District, as to why action should not be initiated against him keeping in view the report filed by the Court Commissioner. The authority has offered explanation to the show cause notice issued by this Court and while doing so, has filed a detailed affidavit and has also annexed the photographs and also placed on record various orders passed by the Deputy Commissioner and also order passed by the Deputy Director of Mines and Geology and also order passed by the State Level Environment Impact Assessment Authority, Karnataka.

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The respondent No.6 has also filed a detailed objection to the report submitted by the Court Commissioner. We have examined the affidavit filed by the Senior Geologist, Department of Mines and Geology, Chamarajanagar District. We have also meticulously examined the detailed objection filed by respondent No.6. On perusal of the affidavit filed by the Senior Geologist, we

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are of the view that the allegations and the apprehension narrated in the writ petition appears to be factually incorrect. The Senior Geologist, who is a competent authority, on spot inspection, at paragraph Nos.4 and 5 of the affidavit has stated as follows:

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“ 4. I humbly submit that, in the spot inspection conducted by the learned Court Commissioner having noted the main channel there is a mention about a sub-channel. In fact the sub-channel is a drain channel carrying waste water from the residents situated nearby. It was not mentioned in the compliance report submitted before this Hon’ble Court. As the Joint Inspection was carried out keeping in view of the statutory provisions contemplated under sub-rule 2 of Rule 6 KMMCR, 1994 which contemplates to take measurement only from the distribution canals not any other sub-drainage or sewage outlets situated near the quarry pit as such the same was not mentioned in the Joint Inspection report as it is irrelevant and does not have any bearing on general hindrance contemplated in Rule 6 of KMMCR, 1994. The photocopies of the drainage channel is produced and marked as Annexure-R1.

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5. I humbly submit that while conducting Joint Inspection report though it is appraised to the learned Court Commissioner that sub-channel mentioned in the spot inspection is not a sub-channel, it is a sewage water drain. The learned Court Commissioner choose to mention the same. Even in the report of the Commissioner, it is stated that the northern channel contain very little water and it is filled with grass and bushes. There seemed no water ingress into the water channel on the day of visit.”

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On perusal of the detailed affidavit, which is filed by the Senior Geologist, we would find that the allegations that the water channel and the stream is being polluted on account of quarrying activities being conducted by the respondent No.6 stands rebutted by the affidavit filed by the competent authority.

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In the affidavit, it is specifically stated at paragraph 3 that since petitioner has alleged that the mining activities is polluting the abutting area and since there are also allegations that respondent No.6 has indulged in blasting activities, a spot inspection was conducted in terms of statutory provisions contemplated

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under sub-Rule (2) of Rule 6 of the Karnataka Minor Mineral Concession Rules, 1994. In the compliance affidavit, it is also stated that Tahsildar and Surveyor of the Taluka on spot inspection have confirmed that as per Village map, there is only one distribution channel which is situated at a distance of 60 meters from the quarry area. The authority has also referred to the sub-channel which finds place in the report submitted by the Court Commissioner.

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On perusal of the affidavit filed by the Senior Geologist and also the report of the Court Commissioner, we would find that there is no conflict insofar allegation of sub-channel is concerned. However, the Court Commissioner has referred to this sub-channel as a water channel and this is seriously refuted by the Senior Geologist who has stated that this sub-channel is a drain channel carrying waste water from the residents situated nearby. Therefore, the Senior Geologist has stated that report of the Court Commissioner indicating existence of a subchannel is factually incorrect and in fact, it is a sewage water drain.

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We have meticulously examined the report submitted by the Court Commissioner and also the affidavit filed by the Senior Geologist along with the photographs. On perusal and after comparing both the reports, we are of the view that the Court Commissioner's report indicating existence of a sub-channel appears to be factually incorrect. If the contents of the affidavit filed by the Senior Geologist are examined by referring to the photographs produced at Annexure-R1, then the contention of the Senior Geologist that it is sewage water drain has to be accepted and if it is a sewage water drain, then the question of distance of said sub-channel from the quarrying area is of no consequence and the allegation that on account of mining activities, the said sub-channel is getting polluted also appears to be misconceived.

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What is required to be enquired in the present case on hand is as to whether the statutory provisions contemplated under the Karnataka Minor Mineral Concession Rules, 1994 are violated. The affidavit of the Senior Geologist indicates that measurement has to be taken from the distribution canals and not from any sub-

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drainage or sewage outlets situated near the quarry pit. An explanation is offered by the authority that while carrying out joint inspection report, the sub-drainage and sewage outlets were not notified as they were not at all relevant and had no bearing while considering the application for quarrying in term of Rule 6 of the Karnataka Minor Mineral Concession Rules, 1994. The said explanation appears to be reasonable and the same stands accepted by this Court.

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We also find some force in the submission made

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by the learned Additional Government Advocate appearing for respondent Nos.1 to 5. He has taken us to the cause title and has raised a strong objection with regard to the petitioner filing the present writ petition. On perusal of the same, we would find that the petitioner is a resident of Mysuru and he is trying to espouse the cause of the residents of Yeragamballi Village, Yelanduru Taluk, Chamrajnagara District. Therefore, we doubt the intention of the petitioner in initiating the present writ petition in the form of public interest litigation.

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The public interest litigation is an extremely important jurisdiction exercised by the Hon'ble Apex Court and High Courts. The courts in a number of cases have given important decisions and passed orders is deserving cases which have brought positive changes in the country. The constitutional court's directions have immensely benefited marginalized sections of the society in a number of cases. The public interest litigation is an upshot and product of the Hon'ble Apex Court's deep and intense urge to fulfill its bounden duty and constitutional obligation. This constitutional obligation is being followed by the High Courts also and similar jurisdiction is exercised under Article 226 of the Constitution of India in deserving cases. In admitting public interest litigation, the Court has to strike balance between two conflicting interests. No individual should be allowed to vent his private vengeance and therefore, the courts have to be careful to see that behind the beautiful veil of public interest an ugly private malice, personal vendetta and vested interest is not promoted under the garb of public interest litigation.

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We do not find any bonafide to file writ petition, even otherwise, the reports, the affidavit and the photographs produced by the Senior Geologist clearly indicate that there is no stream water channel as alleged and the question of water being polluted on account of quarrying by respondent No.6 does not arise. Accordingly, the writ petition is dismissed.

Sd/-

CHIEF JUSTICE

Sd/JUDGE

M. Samiulla v. the Deputy Commissioner

Case brief

What is this about?

What did the court decide?

M. Samiulla v. the Deputy Commissioner

Case brief

What is this about?

What did the court decide?

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