Allowed

Sri Gajanan S Bhat v. the Union of India

Karnataka HC23 Feb 2024WP/4124/2024

Case brief

AI extract

What is this about?

Ayurvedic doctors sought post-facto CRZ/environmental clearance for their Panchakarma Centre under a 2018 Notification. The Union rejected their application citing stayed High Court orders; since the Supreme Court had since stayed those orders, the High Court quashed the rejection and directed fresh consideration.

What did the court decide?

Endorsement dated 21.03.2022 (Annexure-A) set aside; first respondent directed to consider and pass appropriate orders on the application (Annexure-D); no costs.

Sri Gajanan S Bhat Vs the Union of India — Environment and Pollution | Karnataka HC (2024)

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1 - NC: 2024:KHC:7719-DB WP No. 4124 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD DAY OF FEBRUARY, 2024

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PRESENT

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THE HON'BLE MR P.S.DINESH KUMAR, CHIEF JUSTICE

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AND

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THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA WRIT PETITION NO. 4124 OF 2024 (GM-RES)

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BETWEEN:

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Digitally signed by YASHODHA N Location: HIGH COURT OF KARNATAKA

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SRI. GAJANAN S. BHAT S/O LATE SRI. SUBRAY RAMA BHAT AGED ABOUT 82 YEARS OCCUPATION: RETIRED TEACHER RESIDING AT KADLE, KUMTA TALUK UTTARA KANNADA DISTRICT KARNATAKA-581 351

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SMT. SHAKUNTALA W/O SRI. GAJANAN BHAT AGED ABOUT 81 YEARS OCCUPATION: HOME MAKER RESIDING AT KADLE, KUMTA TALUK UTTARA KANNADA DISTRICT KARNATAKA-581 351

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DR. RAVIRAJ KADLE S/O SRI. GAJANAN BHAT AGED ABOUT 51 YEARS OCCUPATION: AYURVEDIC MEDICAL PRACTITIONER RESIDING AT KADLE, KUMTA TALUK UTTARA KANNADA DISTRICT KARNATAKA-581 351 …PETITIONERS

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(BY MS. RUPALI K. TRIVEDI, ADVOCATE)

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2 - NC: 2024:KHC:7719-DB WP No. 4124 of 2024

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AND:

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THE UNION OF INDIA REPRESENTED BY THE SECRETARY MINISTRY OF ENVIRONMENT FOREST AND CLIMATE CHANGE INDIRA PARYAVARNA BHAVAN JOR BAGH ROAD NEW DELHI-110 002

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THE STATE OF KARNATAKA REPRESENTED BY THE SECRETARY (ECOLOGY AND ENVIRONMENT) DEPARTMENT OF FOREST, ECOLOGY AND ENVIRONMENT, M.S.BUILDING AMBEDKAR VEEDHI BENGALURU …RESPONDENTS

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(BY SMT. SADHANA S. DESAI, CGC FOR R1; SHRI. S.S. MAHENDRA, GOVERNMENT ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE ENDORSEMENT DATED 21.03.2022 ISSUED BY THE 1^ST RESPONDENT VIDE ANNEXURE-A AND ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING , THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:

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ORDER

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Heard Ms.Rupali K.Trivedi, learned advocate for the petitioner and Mrs.Sadhana S.Desai, learned CGC for respondent No.1.

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NC: 2024:KHC:7719-DB WP No. 4124 of 2024

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This writ petition is filed with following prayers:

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a) To issue a writ in the nature of certiorari quashing the endorsement dated 21.03.2022 issued by the 1^st respondent vide Annexure-A;

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b) To issue a writ in the nature of mandamus directing the first respondent to grant clearance/approval in terms of the recommendation letter dated 15.10.2020 (Annexure-F) issued by KSCZMA;

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c) Grant such other writ, order or direction as may be deemed appropriate in the given set of circumstances.

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Petitioners are Ayurvedic doctors running a Centre in the name of “Ashwinidhama Panchakarma Centre”. They have filed an application dated 26.06.2018 (Annexure-D) for post-facto approval for permissible activities pursuant to Notification No.S.O.1002 (E) New Delhi dated 06.03.2018 issued by the Ministry of Environment, Forest and Climate Change. The said application was initially rejected by the State Government vide Communication dated 01.02.2019 (Annexure-E) holding that activity is not a permissible activity. Consequently, by a Communication dated 15.10.2020 (Annexure-F), the Principal

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NC: 2024:KHC:7719-DB WP No. 4124 of 2024

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Secretary to the Government (Ecology and Environment), Forest, Ecology and Environment Department, conveyed to the Secretary, Ministry of Environment, Forest Climate Change, that request for proposal for post facto approval of Ayurvedic Panchakarma Centre may be considered and ratified. In the said letter, it is recorded that Regional Director (ENV), Karwar, has carried out spot inspection on 30.05.2020 and submitted a report on the existing structures. After receipt of this recommendation by the State Government, the Government of India, vide Communication dated 21.03.2022 (Annexure-A) has rejected petitioner’s request on the premise that Official Memorandum¹ No.19-27/2015-IA III dated 19.02.2021 issued by the Ministry of Environment, Forest and Climate Change, had been stayed by the Bombay and Madras High Courts and the Ministry has been restrained from granting permission on the basis of the said O.M. Assailing the said Communication, petitioners are before this Court.

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Ms.Rupali Trivedi submitted that vide Notification dated 06.03.2018 (Annexure-C), the Ministry has proposed post-facto clearance for permissible activities. Adverting to Clause 4.3

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1 O.M.

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thereof, she submitted that as per the Notification, petitioners’ activity was permissible and an application was required to be filed on or before 30.06.2018. Petitioners have submitted their application in time on 26.06.2018 and the delay, if any has occurred at the instance of the State Government. Further, order passed by the Bombay High Court has been stayed in SLP (Civil) Diary No.33838/2023 and order passed by the Madras High Court has been stayed in SLP (Civil) Diary No.33840/2023. She further submitted that after spot inspection, State Government have now recommended for post facto approval as per Annexure-F.

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Ms.Sadhana Desai has filed a memo of documents furnishing a copy of the O.M. dated 19.02.2021 and copies of the order dated 06.09.2023 passed by the Apex Court in SLP(C) Diary No.33838/2023 and order dated 04.09.2023 passed by the Apex Court in SLP(C) Diary No.33840/2023.

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We have carefully considered rival submissions and perused the records.

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Petitioners’ case is that they are entitled for

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post facto clearance in terms of Notification dated 06.03.2018.

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The last date for submission of the application was 30.06.2018. Annexure-D is the application dated 26.06.2018 which is within the stipulated time. The State Government have initially rejected

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the proposal by their Communication dated 01.02.2019 and subsequently after holding spot inspection, recommended for post facto clearance on 15.10.2020. Thus, petitioners, in the normal circumstances, were entitled for consideration of their case as per Notification dated 06.03.2018(Annexure-C). However, proposal has been rejected on the premise that O.M. dated 19.02.2021 has been stayed by the Bombay and Madras High Courts. The copies of the orders passed by the Apex Court show that the orders passed by the Bombay High Court and Madras High Court have been stayed. In that view of the matter, the Communication as per Annexure-A is unsustainable. In the result, this petition must succeed and hence the following:

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ORDER

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(i) Writ Petition is allowed;

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(ii) The Communication dated 21.03.2022 vide AnnexureA is set aside; and

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(iii) Respondent No.1 is directed to consider and pass appropriate orders in accordance with law on the application dated 26.06.2020(Annexure-D).

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