TaxTMI 
TaxTMI 
2002 (1) TMI 1346
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....ducation Department, produced as Annexure-A to the writ petition. The petitioner with a view to establish a medical college under the name and style of M/s. Infant Jesus Medical College and Hospital at Lingenahalli Village, Nelamangala Taluk, Bangalore Rural District, approached the State Government for issuance of essentiality certificate. The essentiality certificate was granted by the State in its proceedings held on 4-9-1998. Pursuant to the obtaining of the essentiality certificate the petitioner has also purchased the land measuring 21 acres and 19 guntas in Lingenahalli Village, Kasaba Hobli, Nelamangala Taluk, Bangalore Rural District after obtaining the requisite permission as contemplated under Section 109 of the Karnataka Land Reforms Act, 1961 vide order dated 29-4-1999 (Annexure-C) On purchase, the petitioner also made an application to the Deputy Commissioner, Bangalore Rural District under Section 95 of the Karnataka Land Revenue Act, 1964 for conversion of the land from agriculture to non-agriculture use. After holding an enquiry as contemplated under Section 95 of the Karnataka Land Revenue Act, 1964 the conversion sought for by the petitioner, was granted to it by....
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....ame to be filed before this Court on 30-5-2000 on the basis of the said newspaper report by one Mr. B. Krishna Bhat in W.P. No. 18657 of 2000. 4. The Board which was hitherto silent on the aspect of environmental pollution, suddenly woke up after publication of the news item in the newspaper and the subsequent filing of the writ petition had issued an order dated 9-6-2000 refusing to grant permission to establish a medical college and hospital. Simultaneously, on 29-5-2000 the BMRDA sent a letter to the petitioner wherein the petitioner was informed that the condition mentioned at Sl. No. 7 in the earlier sanction to the effect, 'the environmental clearance shall be obtained from Karnataka State Pollution Control Board, Bangalore before commencing the actual production', be read as 'the environmental clearance shall be obtained from the Karnataka State Pollution Control Board, Bangalore before commencing the actual construction'. 5. In the meanwhile, the writ petition came up before a Division Bench of this Court on 21-6-2000 for orders and this Court ordered stoppage of further construction. The petitioner on 3-7-2000 filed an appeal before the Appellate Authorit....
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....s, the Board sought the dismissal of the writ petition. 8. I have heard the arguments of Mr. K. Suman, learned Counsel for the petitioner and Mr. D. Nagaraj, learned Standing Counsel for the respondent. 9. Learned Counsel Mr. Suman submitted that there was deemed consent by the Board under Section 25(7) of the Act. In view of the deemed consent the impugned order is void as being without jurisdiction. The impugned order is one made overlooking the ground reality. The petitioner had no occasion to make known his stand before the Board as the notice contemplated under Section 25 of the Act in terms of Rule 33 of the Rules was not issued to him. The finding recorded by the Appellate Authority in its order that the application of the petitioner was not complete in all respects is totally unfounded. Referring to the observations made by the Appellate Authority in its order regarding the situation of the premises in a sensitive area, it is submitted by him that sensitive area is not defined under the Act. Referring to the refusal by the Board it is argued that the approach of the Board was not pragmatic but pedantic and such refusal cannot be sustained when no notification was issued u....
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....these three factors do exist in his favour, it would have to be deemed, without much ado, that the permission was given unconditionally immediately on the expiry of the four months period, 13. Now examined in this perspective, admittedly, in the present case, the petitioner presented an application on 27-11-1999. The Board sat on it till 9-2-2000 on which date the Board wrote to the petitioner to co-ordinate with it and organise a site inspection. This letter was responded to by the petitioner on 26-2-2000 expressing readiness to go along with the officers of the Board to the spot for inspection of the premises. Nothing transpired after that and the Board took no steps in the matter to either grant or refuse the required permission. It is only after the publication of the news item in Indian Express on 28-5-2000 and the subsequent filing of the public interest litigation, the Board passed an order vide Annexure-P, dated 9-6-2000, refusing to grant the consent for establishment. Thus, the order has been passed after six months, much after the deadline prescribed under Sub-section (7) of Section 25 of the Act. 14. The answer to the question would depend on the legal consequence whi....
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....fers to the inspection date as 16-5-2000. There was only one inspection done in the present case. The Appellate Authority has proceeded on the wrong assumption that the relevant date for calculating the statutory period of four months is from the date of inspection and not from the date of presentation of the application. This wrong assumption coupled with the circumstance that the Appellate Authority appears to have made out a totally new case for itself when it was not urged by any of the parties before it renders its finding on this point bad both in law and on facts. 16. Now, let me examine with reference to some of the case-laws on the point as to whether in the present case it could be said there was deemed consent by virtue of Sub-section (7) of Section 25 of the Act. 17. Learned Counsel for petitioner Mr. K. Suman relied on the decision on Ameya Presence Marketing, Bangalore v. The Bangalore City Corporation and Anr. In the said case the Division Bench of this Court was dealing with Section 443 of the Karnataka Municipal Corporations Act, 1976 which provided that if no order is communicated by the authority to applicant within forty-five days after receipt of the applicat....
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....er with fresh reasons which did not form part of its order when it was originally made. In Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors., the Apex Court while judging the validity of an order passed by a statutory authority, observed: "When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out". 18. I am constrained to remark on this aspect because learned Counsel for the Board sought to justify the impugned order of the Appellate Authority on the ground that the petitioner cannot stake claim to the benefit available under Sub-section (7) of Section 25 of the Act because its application was not complete in all respects. When the Board itself in its order refusing the permission did not mention this aspect it is not open, in the light of the decision in Mohinder Singh Gill's case, supra, for the Board or even for the Appellate....
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....he environmental risks being run by regulatory inaction are in some way 'uncertain but non-negligible', then regulatory action is justified. This will lead to the question as to what is the 'non-negligible risk'. In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. They are to discharge this burden by showing the absence of a 'reasonable ecological or medical concern'. That is the required standard of proof. The result would be that if insufficient evidence is presented by them to alleviate concern about the level of uncertainty, then the presumption should operate in favour of environmental protection". 23. The question in this case would be whether the petitioner had the opportunity to discharge the burden and present evidence to alleviate the concern about the level of uncertainty. The answer becomes quite clear if we allude to the sequel of events that transpired between presentation of the application and its ultimate refusal by the Board. The petitioner presented an application on 27-11-1999. The Board sat on it till 9-2-2000 on which date the Board wrote to the petitioner to co-ordinate with it an....
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....industry, operation or process, or any treatment and disposal system or any extension or addition thereto, or using the outlet, or making the discharge, as the case may be, a notice imposing any such conditions as it might have imposed on an application for its consent in respect of such establishment, such outlet or discharge". (emphasis supplied) 25, The Board acting under Section 4(b) refused consent for the following reasons: 1. The above site is located on the banks of Kumudavathi River. This location is sensitive as the Kumudavathi river joins the Thip-pagondanahalli Reservoir, which is a major drinking water source to Bangalore City; 2. The direct and indirect discharges from the activities of the hospital and the public attending the hospital is likely to join Kumudavathi river and finally affect the water quality of Thippagon danahalli Reservoir; and 3. You have started the construction of Medical College and Hospital without obtaining clear permission of this Board as per the provisions of Water (Prevention and Control of Pollution) Act, 1974. 26. The restriction imposed under Sub-section (1) of Section 25 is subject to the provisions contained in Section 25....
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....fact that notification as prescribed under Rule 5 of the Environment (Protection) Rules, 1986 has not been published either by the State Government or the Central Government. The learned Counsel for the respondent-Board relies on the executive summary produced as Annexure-R6 which is a report on the study carried out by ISRO to understand the reasons for reduced inflow. This report is no answer to a notification as is required under Rule 5 of the Environment (Protection). Declaring an area as a sensitive one does not lie within the subjective satisfaction of the Board and the Board cannot arrogate to itself the right to declare an area as sensitive one. Unless this has been done by the authority empowered under the statute by a process known to law, the Board cannot make out a ground on the said basis to reject an application validly made to it. 29. There can be no doubt at all in the circumstances of the present case that the petitioner was never called upon nor was he provided the opportunity to dispel any reasonable concern that the Board may have had about the potential danger that the industry would have caused. When it can be reasonably said that the establishment of the hos....
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....he proposed scheme would not affect the availability of water for supply to the city of Bangalore and would not result in pollution of waters of river Arkavati and Thippagon danahalli Water Reservoir". 32. After holding so, the Apex Court permitted the establishment of an entire township near river Arkavati. What emerges from all these pronouncements of the Apex Court is that there should be some 'non-negligible' potential danger to environment if the permission sought could be refused. Where it is not possible to draw a reasonable inference from the records of such 'non-negligible' danger to environment, I am of the considered view that the principle of 'sustained development' would come into play. Hospital being an institution that is essential to improve the quality of human life, its establishment subject to ensuring the carrying capacity of the supporting ecosystems, I feel, is the right answer to the question in issue. There are good reasons to hold so, in this case, because the area concerned is not declared as a sensitive area by publication of the required notification, the petitioner has the benefit of deemed consent and it is not possible to....
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....p of more tanneries like mushrooms in and around Ambur Town, the magnitude of the effluent water used with chemicals and acids let out daily can be shockingly imagined... The effluents are let out from the tanneries in the nearby lands, then to Goodar and Palar rivers. The lands, the rivulet and the river receive the effluents containing toxic chemicals and acids. The subsoil water is polluted ultimately affecting not only arable lands, wells used for agriculture but also drinking water wells". In the face of such grave fact situation, the Apex Court after referring to various reports of the expert bodies, ultimately gave the following direction: "We suspend the closure orders in respect of all the tanneries in the five districts of North Arcot Ambedkar, Erode Periyar, Dindigul Anna, Trichi and Chengai M.G.R. We direct all the tanneries in the above five districts to set up CETPs or Individual Pollution Control Devices on or before November 30, 1996. Those connected with CETPs shall have to install in addition the primary devices in the tanneries. All the tanneries in the above five districts shall obtain the consent of the Board to function and operate with effect fro....