The Karnataka High Court has observed that in projects of the kind, trees, plants and grass do vanish away and that is not desirable. However, that happens inevitably. In all human institutions, a smaller evil is tolerated for achieving the greater good.

The Division Bench of Chief Justice Prasanna B. Varale and Justice Krishna S. Dixit dismissed a Public Interest Litigation (PIL) filed calling in question Deputy Commissioner’s order dated 31.01.2022 whereby, a small portion of 5 acres of land in of Kupaturu Village in Soraba Taluka has been reserved for the establishment of Solid and Liquid Waste Disposal Unit within the jurisdictional limits of 5th respondent – Panchayat.

The Counsel for the petitioners argued that earlier, a piece of 2 acres in the very same survey number was earmarked for the said purpose within the jurisdictional limits of Kupaturu Grama Panchayat vide order dated 28.07.2020 and abruptly the said order having been withdrawn, the impugned order has been made without assessing environmental impact. The extent of 5 acres is too huge and that would affect the cattle of the rural public. He also draws attention of the Court to the requirement of a diversion order after notice to the public at large.

The Additional Government Advocate for the official respondents opposed the petition contending that the establishment of dry and wet waste management unit has enormous public interest that outweighs the arguable public interest in the petition. 2 acres of land earlier reserved for the purpose having been found to be inadequate, a larger extent in 5 acres is now allocated keeping in view the population growth and expansion of the towns in question. So contending she seeks dismissal of the petition.

The Court held that there is force in her submission that the population growth is exponential and it causes expansion of the towns and settlements. That in turn would generate more dry and wet waste, humans being what they are. Therefore, in the considered opinion of the authorities, the 2 acres having been found inadequate, now a piece of 5 acres of land is earmarked for the establishment of waste processing unit. By no stretch of imagination it can be said that, the same is not in public interest. The Court is also convinced that the public interest in the project in question outweighs the arguable public interest in the petition.

The gomal lands are earmarked for the purpose of village cattle in public interest, is true. However, the authorities in their accumulated wisdom having processed the statistical data have taken a decision to earmark 5 acres of land for the establishment of waste processing unit. The public interest in such establishment again overrides the public interest that prompted them to reserve the land for the purpose of gomal/gairon.

It is not that the gomal land can never be diverted to other larger public purpose like the one put in challenge. There is absolutely no material on record to substantiate the argument that any provision of law is violated by diversion of the Government land for the purpose of waste management which in turn serves the interest of environment and ecology , the Bench noted.

“We cannot readily assume that every establishment of project of the kind will have a bad impact on the environment. These are matters left to the Executive wisdom and a writ court having its own limitations cannot run a race of opinions with the authorities.”

The submission that several standing trees in the land in question shall be felled for the subject project and therefore the impugned order is liable to be voided, is difficult to countenance by the High Court .

“The greatest happiness of the greatest number of people which Jeremy Bentham (1747-1832) propounded in the “Introduction to the Principles of Moral and Legislation” animate such public projects. Any venture of the kind would inevitably extract some price, is true. What one has to see is the quantum of the price qua the enormity of benefit that would accrue by virtue of the project in question. Viewed from this angle, we do not find any merit in the submission”, the Bench observed.

The Karnataka High Court dismissed a Public Interest Litigation (PIL) filed seeking direction to the official respondents to take immediate steps to stop the illegal construction of a multistoried building on a Government land.

The PIL filed by one Manjunath Badi , also seeks the quashment of agreements dated 01.06.2022, 03.09.2022 and 19.09.2022 along with the cost estimates.

The counsel for the petitioner argued that though the land in question belongs to the Government, the 7th respondent (Karnataka Rural Infrastructure Development Limited (KRIDL)) could not have undertaken the construction activity without the Sanctioned Plans & Building Licence/Permission. He also adds that such a huge project in question could have been awarded to the respondent KRIDL without following the procedure prescribed by the Karnataka Transparency in Public Procurement Act, 1999.

The Additional Government Advocate having accepted notice for the official respondents opposes the petition contending that the same lacks in public interest; the construction is for the purpose of establishing offices and quarters of the Forest Department, which is a dire requirement because of forestation and such other allied activities being escalated. The petitioner has to show that there is any legal requirement of securing a Sanctioned Plan or a Building Licence by the Government for putting structures in its property. She also points out the Government Orders that exempt the project in question from provisions of 1999 Act. So contending, she seeks dismissal of the petition.

The Division Bench of Chief Justice Prasanna B. Varale and Justice Krishna S. Dixit declined indulgence in the matter broadly agreeing with the submission made on behalf of the official respondents.

The Bench noted that the property belongs to the Government; the purpose of the project is to erect structures for the offices and quarters of the Forest Department which is a part of the Government. Such a project cannot be said to be lacking in public interest. In fact, the enormity of public interest lying in the project in question outways any arguable interest which the petitioner seeks to but failed to demonstrate as being paramount.

His first submission that this project could not have been undertaken without following the provisions of 1999 Act is bit difficult to countenance. The Additional Government Advocate is right in drawing the Court attention to the Government Notification dated 07.09.2016, issued under Section 4(g) of the 1999 Act whereby, the project in question is exempted from the usual procedure of public tender. This exemption notification obviously is not put in challenge , the Bench held.

The other submission of counsel for the petitioner that the Government ought to have taken Sanctioned Plans and Building Licence/Permission before undertaking the activity in question is not substantiated by drawing the Bench attention to the provisions of any statute much less the Karnataka Municipal Corporations Act, 1976.

Section 299 of this Act provides for grant of permission for the execution of construction work with a site plan of the land, ground land, elevations and sections of the building. However, the said provision employees the term “If any person intends to construct … ” we are not sure that in that expression, the State Government as defined under Section 2(13) of this Act. There is a sea difference between “person” and “Government”. In the text and context Section 299, the term “any person” does not include the State Government. Section 3(28) of the Karnataka General Clauses Act, 1899 defines “person” to include any company or association or body of individuals, whether incorporated or not. Thus, the Bench observed that there is absolutely no scope to include a Government within that definition, either.

The Karnataka High Court has observed that the Writ Court can entertain only a writ petition, not a mercy plea.

A Single Bench of Justice Krishna S.Dixit rejected a Petition filed seeking direction to the respondents that in lieu of withdrawal direct the Bangalore Development Authority (BDA) to allot one plot/ stray plot in  bangalore and execute the lease cum sale agreement or sale deed directing the respondent BDA to receive the entire consideration together with interest, i.e., at the cost of his earlier allotment , as the cancellation is contrary statutory provisions of BDA Act from the petitioner.

The Counsel for the petitioner vehemently argued that his client belongs to Schedule Caste and that he was offered a site vide Allotment Letter in 2003. However he had great financial difficulty and therefore, he could not make payment in terms of the condition incorporated in the Allotment Letter; in view of that, his  client has withdrawn the amount deposited by way of initial payment. That being the position, the Court should ask the BDA to show mercy, regarding the multiple attempts he has made for securing a one single site. The counsel heavily banks upon the proviso to Rule 13 of the BDA (Allotment of Sites) Rules, 1984.

The Panel counsel appearing for the BDA opposes the petition contending that since on his own the Petitioner has withdrawn the initial deposit specifically pleading financial requirement for the payment of college fees of this daughter, now he cannot turn around and claim that the allotment should be restored or that some other site should be allotted. He loudly reads BDA’s Endorsement dated 06.10.2009  which the petitioner himself has produced. He also repels the invocation of proviso to the subject Rule in the fact matrix of the case. So contending, he seeks dismissal of the petition.  

Having heard the counsel for the parties and having perused the petition papers, the Court is broadly in agreement with the submission made by  Senior Panel Counsel appearing for the BDA that the allottee of a site cannot turn around and complain that he should be given allotment even when no amount is paid or that even when the initial amount paid by him has been withdrawn unconditionally on his own. The contra contention of petitioner if accepted would amount to placing premium on his approbation & reprobation which the writ courts often bank upon to deny relief sought for in equitable jurisdiction , held the Bench.
Further the Bench held that Panel Counsel for the BDA is more than justified in contending that the proviso to Rule 13 of the 1984 Rules is not at all invokable. Ordinarily, the proviso is treated as an exception to the general norm incorporated in the main. The petitioner should broadly fit into the norm first and then he should escape from it’s clutches by showing the special circumstances which the proviso takes cognizance of for according some reprieve. That has not happened in this case, no special circumstances having been pointed out. 
“The last contention of counsel for the Petitioner that his client belongs to Schedule Caste and therefore, leniency has to be shown by treating his case as a mercy petition, is bit difficult to countenance. The Writ Court can entertain only a writ petition, not a mercy petition, since constitutional jurisdiction is to be exercised on the basis of established rights and not on ground of the kind now urged. The contra contention will lay a very bad precedent for such other matters, which if decided on grounds of mercy, would cause a great prejudice to the public interest”, observed the High Court.

The Karnataka High Court referred to a larger bench on Wednesday, a batch of petitions filed by Muslim girl students in the state, claiming that they were not being allowed to enter colleges on account of a government order that banned the wearing of hijab (headscarves).

The Single-Judge Bench of Justice Krishna S. Dixit observed that the matter required consideration of a larger bench, in view of the related verdicts given by the neighbouring High Courts.

Senior Advocate Sanjay Hegde, appearing for one of the petitioners, urged the Court to grant the students interim relief while the matter is referred to a larger bench.

“They have only two months (of the academic year) left. Do not exclude them…we need to find a a way that no girl child is deprived of education…Today what is absolutely important is that peace comes, Constitutional fraternity returns to the college. No heavens will fall for two months…”

Appearing for a college development committee, Senior Advocate Sajan Poovayya, however, contended that the questions raised in the writ petitions are squarely falling under Justice Dixit’s roster. Therefore, he urged the Court to decide the matter after hearing the parties.

Advocate General Prabhuling Navadgi opposed the grant of interim relief. He submitted,

“My submission is that my learned friend (Kamat) has completed his arguments. Now, it is for State to argue and then it is for the Court to adjudicate…I wanted to say the petitions are misconceived. They have questioned the GO. Each institution has been given autonomy. State does not take a decision.”

During yesterday’s hearing, Senior Advocate Devadatt Kamat appeared for one of the petitioners. His submissions were as follows:

• Wearing of head scarf (not burqa or veil) is an essential part of Islamic religion;
• Wearing of hijab is protected by right to expression under Article 19(1)(a) and can be restricted only on grounds under Article 19(6);
• Wearing hijab is a facet of the right to privacy recognised as part of Article 21 by Puttaswamy judgment of Supreme Court;
• Government order is outside the scope of the Karnataka Education Rules and State has no jurisdiction to issue the same.

In view of the facts that exams are approaching, and that the petitioners have been exercising their right to wear hijab for the last two years, Kamat prayed that they be granted interim relief by being allowed to attend classes for now.

The Court eventually appealed to the student community and the public at large to maintain peace and tranquility in the wake of protests against the government order.