Sri M L Gangaraju Vs the State of Karnataka

SRI. G.K. THIPPESWAMY S/O LATE G. KRISHNAPPA AGED ABOUT 40 YEARS R/A GUNDLAHALLI VILLAGE, D.V.HALLI POST, KASABA HOBLI, MADHUGIRI TALUK-572 132 TUMKUR DISTRICT.

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HC-KAR

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M/s. HINDUSTAN PETROLEUM CORPORATION LTD., A COMPANY INCORPORATED UNDER THE INDIAN COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT 17, JAMSHEDJI TATA ROAD, MUMBAI-400020 REGIONAL OFFICE AT NO.77, DOORAVANI NAGAR POST, KRISHNARAJAPURAM, BANGALORE - 560 036 REPRESENTED BY SENIOR REGIONAL MANAGER SRI. SUDHAKAR DUTTA S/O BHASKAR DUTTA AGED ABOUT 46 YEARS

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…RESPONDENTS (BY SMT. B.P. RADHA, AGA FOR R1 TO R5; SMT. VIJETHA R NAIK, ADVOCATE FOR R6; SRI. B. PRAMOD., ADVOCATE FOR R7)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 10.7.2019 PASSED IN THE PROCEEDINGS No. CASE No.ARM(2) CR 22/2014-15 BY THE DEPUTY COMMISSIONER, TUMKUR DISTRICT, TUMKUR VIDE ANNEXURE-A.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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HC-KAR

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ORAL ORDER

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Petitioners, who are the residents of Madhugiri are before

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this Court seeking following relief:

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a. Issue a writ in the nature of certiorari by quashing the impugned order dated 10.07.2019 passed in the proceedings No.Case No.ARM (2) CR 22/2014-15 by the Deputy Commissioner, Tumkur District, Tumkur vide Annexure-A.

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It is contended that land bearing Sy.No.57/4

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measuring 14 guntas and Sy.No.57/7 measuring 21 acres 1/2 guntas, totally measuring 35 1/2 guntas situated in Siddapura Village, Madhugiri Taluk, Tumakur District, belongs to respondent No.6. That on the northern side of the said property there exists a tank, since time immemorial. The water stored in

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the said tank is used for drinking as well as all agricultural activities in and around the schedule property by various landowners, which is also major source of water in Madhugiri Taluk. That Respondent No.6 had approached respondent No.2Deputy Commissioner seeking change of land usage from

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agricultural purposes to specifically for the purpose of establishing and running petrol bunk thereon. Permission was accordingly granted by the respondent No.2 vide order dated

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18.08.2014. Respondent No.5, Assistant Director, Town and Country Planning, had also issued no objection certificate for the purpose of establishing petrol bunk as sought for.

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The grievance of the petitioners is that respondent No.2 and respondent No.5 ought not to have accorded the permission as sought for by respondent No.6 inasmuch as establishment of petrol bunk on the schedule property would be hazardous to the tank situated nearby and also for the adjoining owners and those who are consuming the water there from. That the petitioners had given representation to the respondent No.2-Deputy Commissioner, who failed to take any action in the matter. It is contended that the permission granted for the establishment of petrol bunk is within the buffer zone and the same falls within the prohibited area.

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Learned counsel for petitioners submits that the permission granted to set up the petrol bunk is in violation of the provisions prohibiting such activities within the buffer zone of the Tank. He refers to a communication dated 14.12.2017 issued by the Assistant Director, Town and Country Planning addressed to the Deputy Commissioner wherein it is observed

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that as per the report of this Court, in respect of a tank which has an area more than 40 hectares, a distance of 42 meters is required to be reserved as buffer zone from the edge of the tank. He submits that the said report submitted taking into consideration the ecosystem of the said tank and grant of permission to establish the petrol bunk within the said distance of 42 meters cannot be sustained.

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That apart from the issue of buffer zone, the respondent authorities are also required to ensure that respondent No.6 has taken necessary measures to prevent any discharge of petrol into the nearby tank. The respondent No.2Deputy Commissioner was required to ensure strict compliance of this requirement. That the Pollution Control Board, which is statutorily entrusted with this obligation has also not taken any action in this matter.

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That the respondent authorities were also required to ensure compliance with the aforesaid aspect of the matter, that not having been done and no compliance report in this regard being present before this Court, respondent No.6 cannot be

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permitted to continue the business of petrol bank. Hence seeks for allowing of the petition.

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Learned AGA drawing attention of this Court to Section 12 of the Karnataka Tank Conservation and Development Authority Act, 2014 submits that in terms of provisions of sub-section (3) of the said section the buffer zone that is required to be reserved from the outer boundary of the

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tank for any commercial or recreational or industrial activity is just 30 meters which is being complied with. As regards report of this Court dated 11.04.2012, she submits that the aforesaid Act, 2014 was promulgated subsequent to the said report, Therefore since the statute provides for the same, the same has been followed. As regards the apprehension expressed by learned counsel for petitioners with regard to the pollution that may lead on account of any lapse on the part of the respondent No.6 in ensuring safety measures are put in place, she submits an inspection would be conducted and if found any dereliction on the part of respondent No.6 in complying with the requirement, necessary action would be taken.

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Submission placed on record.

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Learned counsel appearing for respondent No.6 on the other hand, pointing out to the survey sketch produced at Annexure-R7 to the statement of objections submits that a survey was conducted to ensure that 30 meters buffer zone is reserved and it is only thereafter permission is accorded for the purpose of utilisation of the rest of the land for the purpose of installing the petrol bunk. She also refers to the communication at Annexure-P dated 04.01.2018 ensued between the Executive Engineer and the Deputy Commissioner. A report has been submitted by the Executive Engineer to the effect that no water from the tank gets collected into the land in Site No. 57/4 and Site No. 57/7 and there is no percolation either of petrol or water. She further submits that all other conditions imposed by respondent No.2 have been complied with and the respondent No.6 is more than willing to cooperate in all manner and in every respect, if such inspection is conducted by the respondent No.2 to ensure necessary measures are taken to quell the apprehension of the petitioners.

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Submission is taken on record.

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Heard and perused the records.

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HC-KAR

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Sub-section (3) of Section 12 of the Act, 2014 reads

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as under:

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"12. Acts prohibited in tanks -

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(1)xxx

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(2)xxx

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(3) make any irregular and unauthorised construction, any commercial, recreational or industrial complexes or houses or carry on any industrial activity within thirty meters from the outer boundary of the tank"

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Though the report dated 21.02.2011 submitted by the Committee, which was constituted by this Court to suggest steps and measures to be taken for preservation and restoration of lakes in and around Bengaluru, had apparently recommended for reserving the buffer zone of 42 meters in respect of a tank which is 70 hectares and more, the aforesaid provisions of law has come into effect on and from the year 2014. Sub-section (3) has been inserted on and after 2018. Therefore, in the absence of any other provision of law being brought to the notice of this court this Court has no other option but to rely upon the said provision.

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HC-KAR

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On the factual aspects of the matter, necessary to

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note the Survey report produced at Annexure-R7 to the statement of objections which indicate the following:

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The aforesaid survey sketch produced by the respondent No.6 at Annexure- R7 indicate that area marked by

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letters A, B, C, D, and D,E, C, F is the buffer area. It also indicates that the area marked as 1, 2, 3, 4 shown within the area marked by letters A, B, E, D, C, F is the area in which permission to set up petrol pump is granted. Though, a small portion (shown in triangle coloured in green) is stated to be falling within the buffer area, as submitted by learned counsel appearing for respondent No.6 on the previous hearing, even the said area has been relinquished in favour of the authority. Thus, it is contended that there is compliance of sub-Section (3) of Section 12 of the Act.

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Thus the facts of the case read in the light of the aforesaid provision of law indicate that respondent No.6 has been permitted to establish the petrol bunk after leaving 30 meters of buffer zone. Therefore, the contention of the petitioners regarding violation of this cannot be countenanced. However, since the petitioners have raised concern with regard to respondent No.6 not having taken measures with regard to prevention of any pollution that may cause either to the tank or to its water as the case may be, in the light of submissions made by learned AGA as well as the learned counsel for

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respondent No.6, as noted above, this petition is disposed of with a direction to respondent No.2-Deputy Commissioner to inspect the subject petrol bunk in the presence of the petitioners and the respondent No.6 on a specified date as may be convenient to respondent No.2 and ensure the other terms and conditions of the permission including construction of underground tank is as per the specification and report in this regard be filed to this Court within three months from the date of receipt of certified copy of this order.

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Sd/(M.G.S. KAMAL) JUDGE

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SBN

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List No.: 1 Sl No.: 16

Sri M L Gangaraju v. the State of Karnataka

Case brief

What is this about?

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Sri M L Gangaraju v. the State of Karnataka

Case brief

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