M. Habeeb v. Chief Secretary of Government of Karnataka, Bangalore
2012-07-05
B.V.NAGARATHNA, VIKRAMAJIT SEN
body2012
DigiLaw.ai
Judgment : VIKRAMJIT SEN., C.J., 1. In this Writ Petition reliance is placed almost completely on the order dated 15-4-2008 passed in W.P. No. 3502 of 2006. After noting all the previous litigation, the learned Single Judge had allowed the writ petition and had directed the respondents to accept the application of the petitioner for removal of already quarried granite blocks, and further to issue Mineral Dispatch Permits (MDPs) after ascertaining the quantity of granite blocks actually available at the site. 2. Learned Additional Government Advocate seeks to draw our attention to a decision of the Apex Court, already referred to in the said order i.e., Division Forest Officer and Others v S. Nageswaramma ( (1996) 6 SCC 442 ), in an attempt to show that the order relied upon may not be correct. The undeniable fact is that order is not carried in appeal and has therefore attained finality. By entering into this controversy, we would be drawn into doing indirectly what we cannot do directly. The oblique attempt to assail the correctness of an order should not be permitted since one of the most important attributes of law is certainty. We are of the firm conviction that the order dated 15-4-2008 should be implemented. 3. Assuming the correctness of the order dated 15-4-2008, the next contention of the learned Additional Government Advocate is, that a violation of Section 2(iv) of the Forest (Conservation) Act, 1980 would inevitably result if the said granite blocks are directed to be transported away. There is no dispute that there are 478 granite blocks lying on the site measuring 338 cubic meters. With the passage of time, some shrubbery has manifestly grown around the blocks, as the photographs depict. If this shrubbery is damaged in the course of transportation of granite blocks, we think that Section 2(iv) of the Forest (Conservation) Act, 1980 would not be violated. This is for the reason that, it is not necessary to clear any trees in the process of transportation. Learned Counsel for the petitioner confirms removal of no trees for the removal of blocks. We clarify that “trees” shall be naturally grown vegetation of height above 8 feet and the trunk of which has a girth of 1 foot. This definition is only for the purpose of the present petition. 4.
Learned Counsel for the petitioner confirms removal of no trees for the removal of blocks. We clarify that “trees” shall be naturally grown vegetation of height above 8 feet and the trunk of which has a girth of 1 foot. This definition is only for the purpose of the present petition. 4. Learned Counsel for the petitioner undertakes to remove the granite blocks within a period of 10 days and only during 8.00 A.M. to 5.00 P.M. of each day. It is necessary to make this stipulation for the reason that because of finding of elephant dung on the site. It is contended by the learned Counsel for the respondents that this area is traversed by elephants and they constitute elephant corridor. 5. It has also been contended by the respondent that the petitioner would require to construct a road in order to carry out the transportation. We have seen several photographs of the area and are satisfied with the Report that there is a katcha (rough) road. The photographs make it evident that there is a metal road close to the site where these granite blocks are located and that there is in fact a katcha or dis-used road. The report also mentions that the blocks are surrounded by shrubs and plants. In the photographs, a Maruthi Esteem Car can be seen thereby showing that even larger vehicles can ply on the katcha road. We also take note of and bind the petitioner to the statement that the transportation of the granite blocks shall be effected through employment of light goods vehicles. Use of cranes is also permitted. 6. We have passed these orders keeping in view the fact that the petitioner is in no way blameworthy for the removal of the granite blocks. The quarrying was done during the period when it was permitted but the removal of the granite blocks was impeded because of a ban placed by the Government with the intention of apprehending Veerappan. The transportation of granite blocks shall commence from 8.00 A.M. on 23-7-2012 and shall end on 1-8-2012 at 5.00 P.M. The writ petition is allowed in these terms.