IN THE HIGH COURT OF KARNATAKA AT BANGALORE
I. A. No. in
Writ
Petition No. 37681/97 (LB-RES-PIL)
Between:
1. Arthur J. Pereira
S/o Late Thomas Pereira
aged 40 years
R/o Karambar
Bajpe Post
Mangalore 574 142
2. Rev. Fr. Ronald
D’souza
Aged 37 years
Parish Priest
Adyapady Post
Via Bajpe
Mangalore - 574 142
3. Dalita Sangarsha
Samithi
Dakshina Kannada District Unit
Sunder Ullal, Kapikad
3rd Floor, Pereira Hotel
Opp. Govt. College
Mangalore 575 001
Represented by its District Convenor
4. Manjappa Puthran
S/o Late Angara
aged 35 years
R/o Malavoor Padavu
Kenjar Village & Post
Via Bajpe
Mangalore Taluk - 574 142
5. Sadashiva Bhat
S/o Venkatesh Bhat
aged 50 years
Archak
Adyapady Adinatheshwara Temple
Adyapady Village & Post
Via Bajpe
Mangalore 574 142
6. Yuva Vedike (R)
Sadashiva Bhat
Adyapady Adinatheshwara Temple
Via Bajpe
Mangalore 574 142
Represented by its Secretary
7. G. I. Sheikabba
A/o Late Iddine Byari
aged 39 years
President, School Betterment Committee
Adyapady Hr. Primary School
Via Bajpe
Mangalore 574 142
8. I. Sheikabba
S/o Late Abdul Kadar
aged 54 years
President, Thakviathul Islam Madrasa
Gandhi Katte, Adyapady
Via Bajpe
Mangalore 574 142 .......Petitioners
Versus
1. Union of India
Ministry of Civil Aviation
R. G. Bhavan
Safdarjang Airport
22 Akbar Road
New Delhi 110 001
Represented by its Director General
2. Chairperson
Airports Authority of India
R. G. Bhavan
Safdarjang Airport
New Delhi 110 003
3. State of
Karnataka
Revenue Department
M. S. Building
Dr. Ambedkar Veedhi
Bangalore 560 001
Represented by its Secretary
4. Ministry of
Environment and Forests
Paryavaran Bhavan
CGO Complex
Lodhi Road
New Delhi 110 003
Rep. by the Secretary to the Government of India
5. Karnataka State
Town and Country Planning Board
M. S. Building
Dr. Ambedkar Veedhi
Bangalore 560 001
Represented by its Director
6. Karnataka State
Pollution Control Board
Public Utility Building
M. G. Road
Bangalore 560 001
Represented by its Member Secretary
7. The Deputy
Commissioner
Dakshina Kannada District
Mangalore 575 001
8. Central Pollution
Control Board
Parivesh Bhavan
East Arjuna Nagar
New Delhi
9. Dept
of Ecology, Environment and Forests
Government of Karnataka
M. S. Building
Bangalore 560 001
Rep. by the Principal Secretary
10. Zilla
Panchayat
Dakshina Kannada District
Mangalore 575 001
Rep. By its Chief Executive Officer
11.
Mangalore Urban Development Authority
Ballal Bagh
Mangalore
Represented by its Commissioner
12.
Mangalore Mahanagara Palike
Corporation Building
Lal Bagh
Mangalore
Represented by its Commissioner .......Respondents
_ _
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
1.
Fr. Joseph K. J.
S/o Jacob
Aged 35 years
Alphonsa Study Centre
Kankanady Post
Mangalore 575 002
2.
Ms. Tessa
D/o Sebastian
Aged 22 years
C/o Alphonsa Study Centre
Kankanady Post
Mangalore 575 002
3.
Ms. Divya K.C.
D/o Chennakeshava Gowda
Aged 21 years
C/o 4-85/2, Seroli Layout
Kavoor
Mangalore 575 015
4.
Ms. Laxmi B.
D/o B. Rama Rai
Aged 22 years
Ambodimar
Badaga – Belloor
Bantwal
Dakshina Kannada Dt.
5.
Mr. Raveesha A
S/o Poovappa Gowda
Aged 23 years
Kallangala House
Nikaje Post
Bantwal Taluk
Dakshina Kannada 574 235
6.
Mr. Kamalaksha A.
S/o A. Gopalakrishna
Aged 22 years
Anadka House
Kottige Village
Perlambady Post
Puttur Taluk
Dakshina Kannada
7.
Mr. Rajashekar D.
S/o Balakrishna Gowda
Aged 23 years
Sathya Nilaya
Dola House
Markanja Post & Village
Sullia
Dakshina Kannada
8.
Ms. Indira S. Rao
D/o S. S. Rao
Aged 22 years
4-85/2, Seroli Layout
Kavoor
Mangalore 575 015
1. The
Impleading Applicants are based at Mangalore, and are involved in assessing the
social and economic impacts of a variety of development projects coming up in
and around Mangalore. In advancing
their public interest activities, the applicants have collectively formed the
Social Justice Forum at Mangalore.
2. The
Impleading Applicants have been very closely monitoring developments concerning
the expansion of the Bajpe airport in Adyapady and other villages, hereinafter
referred to as “the project”. Based on
these observations, an exhaustive research exercise was conducted into the
project by the Applicants, that brought to light a variety of relevant
legislation and policies pertaining to such developments, as also more facts
that strengthen the contention of the existing petitioners against the project.
3. In
view of the above, the Impleading Applicants respectfully submit to this
Honourable Court as follows:
Facts of the Impleading Application
4. The project is proposed in the villages of Adyapady, Malavooru and Kolambe of Mangalore Taluk, and involves the construction of a second runway with terminal tower to the existing Bajpe airport.
5. The
project is proposed on a hill-top with a drop of about 100 metres all
around. At its narrowest point, the
width is only 150 metres, more specifically at the point where the Mary Help of
Christians Church is located, whereas the proposed width of the runway is 200
metres. The relevant photographs
illustrating the significance of the drop and such other features are produced
herewith at Annexure A-1 and the
directions from where these photographs have been taken are illustrated at Annexure A-2. A true copy
of the official topographical map of the region detailing the features and the
approach funnels of both the existing as well as the proposed airport are
produced herewith at Annexure A-3.
6. The
proposed location as well as the surrounding region is thickly vegetated, and
this includes the existence of a Pilikula Wildlife Sanctuary that falls within
two kms. In addition, within 4 kms of
the proposed location is the municipal waste dumping area at Pachanady. The combination of the natural vegetation
and the municipal waste fill attracts a great variety of bird-life. Of particular concern to the safety of
aircraft is the waste fill which attracts a significantly large number of kites
and vultures, birds that are world-over known to be the most important cause of
bird-hits.
7. In
the approach funnel of the proposed airport project exists a high-tension power
transmission corridor, transmitting electricity at 2,20,000 volts. The Mangalore Refineries and Petrochemicals
Ltd. grass-root refinery with an annual production of 9 million tonnes per
annum, is within 4 kms. of the proposed project. Adjacent to the proposed airport is the proposal to locate a 2
million tonnes per annum steel plant of M/s JESCO, which has already obtained
the final environmental clearance. In
order to demonstrate the blatant violations of the locational criteria, a
relevant abstract from the Environment Impact Assessment for the MRPL project
is produced herewith at Annexure A-4 that
very clearly reveals that the existing refinery is well within the 4 kms. inner
horizontal surface of the proposed project.
8. The
proposed project is being developed with the Mangalore-Bangalore multi-fuel
petroleum pipeline, initiated by Mangalore-Bangalore Pipeline Ltd.,
criss-crossing and cutting through the main alignment for the runway of the
proposed project. The same is shown in
the photograph of the survey marking stone produced herewith at Annexure A-5.
9.
Survey nos. 8, 9 and 10 of Malavooru village, proposed for
acquisition for the project, fall within the Green Belt area of the
Comprehensive Development Plan for Mangalore City. A true copy of the said Comprehensive Development Plan is produced
herewith at Annexure A-6.
10. The project proposes to displace approximately 208 families whose cultural and religious background is listed as follows:
Background of Project affected families
|
Number
|
|
Scheduled Caste |
130 |
|
Minorities |
40 |
|
Backward Classes |
30 |
Others |
08 |
|
Total |
208 |
11. Majority of the project affected persons are illiterate and are poor. Most of these people were at one time bonded labourers and resettled by the Government in the said location around 1945. Almost half of the Scheduled Caste community residing in the area belongs to the Godda community. The Goddas are an endangered ethnic group, local to the Dakshina Kannada region, and their total number does not exceed 2,000.
12. Over
the years, the communities resident in the area have converted what were
considered barren wastelands, into agricultural areas by sheer hard work and
effort. These areas have started
yielding returns only about 10-15 years ago.
In recognition of this effort and the struggle of the community to
achieve a better standard of living, the State Government has supported them
with the Ganga Kalyana Yojana, i.e. provision of irrigation to agricultural
lands exclusively for Scheduled Caste community. In addition, various civic infrastructure has been provided such
as potable water connection, borewells, electricity lines, roads, post office,
school, etc.
13. The
area has also a variety of places of worship from all religious
backgrounds. The details are as
follows:
|
Places of Worship |
Number |
Boothasthanas |
03 |
|
Mosque/Madrasa |
02 |
|
Church |
01 |
|
Total |
06 |
14. A
Government run Higher Primary School was established at the present location in
the year 1953 at Adyapady, and the same continues to remain the only school for
all the children in the project affected villages.
15.
Whilst initiating acquisition of land for the project for
the Airports Authority of India, the State Government has repeatedly violated
various fundamental rights of these people.
The Deputy Commissioner initiated the acquisition for the project based
merely on a requisition letter from the Airports Authority of India. A relevant extract from the award is
produced herewith at Annexure A-7.
16. The
Land Acquisition Officer has not maintained, as required by law, the basic
procedure of maintaining records by keeping an order sheet. When the first Impleading Applicant
approached the Land Acquisition Officer for a copy of the order sheet, the
latter informed that such a document does not exist in the entire acquisition
file. A copy of the response revealing
this fact has been enclosed as Annexure
A-8.
17. In
violation of the principles of natural justice, the officer who conducted the
hearing and spot inspection of the area, did not issue the award. Instead, his successor passed the award, not
only in violation of the due procedure, but without considering any of the
grievances that had been aired during the hearings.
18. The
designate engineers of the State Public Works Department should have fixed the
value of the existing structures, including human settlements, based on a spot
inspection. However, the award has been
passed, by arbitrarily deciding the value of the structures and without any
inspection by the competent authorities as required by law. The same is revealed in the extract of
Schedules 2 and 3 of the award, reproduced herewith as Annexure A-9. It may be
observed from Schedule 2 that the value of the trees and fruit bearing trees
are based on an evaluation by the competent authority, i.e. the Departments of
Forests and Horticulture. However, in
Schedule 3 the value of buildings and structures has been arrived at without
review, inquiry or assessment by any of the competent authorities.
19. A
joint measurement to clearly demarcate the lands of the project-affected
communities should have been undertaken by the Survey Department. Without conducting the same, an award was
passed.
20. Following
public protests and several representations that were repeatedly made to the
relevant authorities over the lackadaisical manner in which the award was made,
the original award was corrected. This
amended award was then re-issued after a gap of 16 ½ months, when the procedure
demanded that the same should have been re-issued within a period of 6
months. A relevant extract of the
corrected award is produced herewith at Annexure
A-10.
21. The
hurried transfer of RTC’s (Record of Rights) from the individual land-owners to
the Airports Authority of India on the 20th and 21st of
July 1998, became a matter of great controversy. This gained national focus when the local Member of the
Legislative Assembly, Mr. Ramnath Rai, joined issue with the project affected
communities and the petitioners, over this blatant misuse of power and
tampering of RTC’s. The project
affected communities contended that they were being dispossessed of their lands
hurriedly and unjustly, and this drew the attention of the Karnataka
Government’s Revenue Minister, Mr. B. Somashekar who paid a visit to the
proposed project area on the 10th September 1998 on a fact finding
mission.
22. The
said project is being proposed in fundamental violation of significant
provisions of the Aircraft Act, 1934.
An exhaustive list of these violations are provided as follows:
(a) Subsection
(1) of Section 9 A of the Aircraft Act grants power to the Central Government
to issue notifications regarding the restrictions to be imposed on certain
developments in the vicinity of aerodromes, either existing or proposed. In exercise of these powers, the Central
Government, more specifically, the Ministry of Civil Aviation, issued a
Notification No. S. O. 988 dated 5th January 1988, which details the
restrictions that are to be imposed around aerodromes. The relevant extract from the said
notification is produced herewith at Annexure
A-11.
(b) In
the said notification, Section 3 details that “the vertical clearance between the structure and the aircraft making an
instrument approach to land shall be upto 150 metres”. This would entail that in the approach
funnel no physical obstruction, particularly of a hazardous nature that may
potentially obstruct or electronically interfere with the instrument landing
facility of the approaching aircraft should exist. In the said project, a 2,20,000 volts high-tension power
transmission corridor exists within 1,500 metres from the edge of the proposed
runway. This in effect would completely
rule out the possibility of the proposed project conforming with this crucial
safety precaution for an approaching aircraft would certainly have to pass well
within 150 metres of the power transmission lines in order to effect a landing.
(c) In
the said notification, the definition of the basic strip for an instrument
runway, as is presently proposed for the aforesaid project, is described as “a uniform strip of 150 metres on either side
of the central line of the runway which extends 60 metres beyond each extremity
of the runway and/or associated runway”.
The said project is being proposed in blatant violation of such a
crucial determinant of the runway in as much as only 200 metres in all is being
acquired for the entire width of the runway.
This in itself increases the risk to aircraft safety tremendously, and
the very high potential of seriously jeopardising the safety of passengers and
surrounding inhabitants exists.
Further, the project location is such that at some points along the
proposed runway, only a width of 150 metres is available. In order to extend the width to the proposed
200 metres a massive, probably unstable and infeasible filling exercise would
have to be undertaken from a depth of over 50-60 metres. Such a location whilst not conforming to
the requisite standards, also limits completely any possibility of emergency
operation along the runway. Further,
such an exhaustive filling exercise will lead to the denudation of surrounding
hills and agricultural fields from where the silt will have to be extracted.
(d) In
the said notification, the inner horizontal area is defined as an area comprising
of 4,000 metres from all points of the runway.
In Annexure II, item 1.3 of the said notification, the maximum
permissible limit of a structure emerging from below the inner horizontal
surface is fixed at a maximum of 45 metres height. The proposed project is so located that the height of the smoke
emission stacks of the Mangalore Refineries and Petrochemicals project, which
falls within the 4,000 metres distance, rises to an height of 69 metres from
the inner horizontal surface. This in
effect would mean that the stack rises over 20 metres above the allowed
limit. Further, the proposed JESCO
steel plant, that has already obtained final environmental clearance and is to
be located adjacent to the proposed project, has been mandated to install an
emission stack of 250 metres height.
The JESCO stack would indeed rise much closer to the runway and at least
over 100 metres of the inner horizontal area.
By locating the project in the proposed area, this would lead to the
MRPL and JESCO stacks fundamentally violating this safety provision and would
thereby seriously put to risk the safety of approaching aircraft. Considering further that both these stacks
emit high volumes of smoke and dust, the safety of the approaching aircraft is
placed at an even greater risk.
(e) Rule
81 B of the said Act prohibits “the
slaughtering and flaying of animals, depositing of rubbish and other polluted
or obnoxious matter in the vicinity of the aerodrome within a radius of 10 kms.
from the aerodrome reference point”.
The project is proposed to be located within 4 kms of the one and only
municipal garbage disposal area for the entire Mangalore city that is located
at Pachanady village. This attracts a
large number of kites and vultures to the area, which are recognised by aviation
experts as well as ornithologists as a major cause of bird-hits. This could potentially and irreversibly
damage aircraft engines, and as well lead to avoidable air crashes.
23. The
said project is being initiated in abject violation of the Airports Authority
Act of India, 1994, in as much as R-2 is hell-bent upon initiating the project
without conforming to the standards and procedures as laid down by law. Indeed, this project is being initiated in
fundamental violation of the very Act for it obligates the authority to the
following responsibilities:
(a) Subsection
(4) of Section 12 requires the authority in the discharge of its function “to have due regard to the development of air
transport service and to the efficiency, economy and safety of such service”. In as much as the safety aspects are
concerned, no application of mind has been made whatsoever to the most
fundamental aspects of air safety whilst conceiving this project, as has been
adverted earlier.
(b) Further,
the project is being initiated in total violation of Section 21 of the Act, as
the land acquisition for the project has been initiated without any contract
whatsoever, that in turn has obtained the approval of the Central
Government. Whereas, only a requisition
letter has been the basis of initiating the exercise of land acquisition,
thereby fundamentally violating the rights of the project affected
persons. Consequently the
project-affected communities are being unjustly, unnecessarily and erroneously
evicted from their lands in abject violation of their right to life and
livelihood as guaranteed by the Constitution of India in Article 21. Considering the fact that most of the
families are from a Dalit background, such ill-conceived projects would cause
on them untold misery and suffering, and drastically impact on their present
quality of life that they achieved by great struggle. The relevant document revealing the lack of a contract is
produced herewith at Annexure A-12.
24. That
the said project is being initiated in abject violation of Sections 14 A and 24
of the Karnataka Town and Country Planning Act, 1961 in as much as the project
is being developed within the Green Belt as proposed in the Revised
Comprehensive Development Plan for Mangalore.
The same is being proceeded with without affecting change of land use as
per the prescribed procedure.
25. That
the said project is being initiated in abject violation of Section 80 of the
Karnataka Land Reforms Act 1961, in as much the RTCs (Records of Rights) have
already been transferred to R-2, whereas the nature of the land continues to be
agricultural. A unitary evidence of the
same is herewith produced at Annexure
A-13.
26. The aforementioned facts are stated in order to bring to the notice of this Honourable Court the lackadaisical approach of the Government in treating the fundamental rights of the project affected communities. Such issues of concern have been raised by this applicant to bring to the notice of this Honourable Court that gross injustice is being perpetrated on the project affected communities, in specific, and the public at large, in general. Furthermore, initiating the project as presently proposed benefits none whatsoever and places a great burden and irredeemable cost to the public exchequer.
Prayer
i. The applicants advance the interest of the general public not only of the locality but the public at large, and also of those passengers that may use the facility. No hardship will be caused either to the petitioners or to the respondents by impleading these applicants as petitioners. Instead it will enable this Honourable Court to base its findings more effectively and judiciously. Wherefore, it is respectfully prayed of this Honourable Court that the applicants be impleaded as Petitioners in the aforementioned Writ Petition in the interest of justice and equity.
Date:
Place: Advocate for Applicants
Address for Service:
H. C. Ravindranath
Advocate
36, Reservoir Road
Basavanagudi
Bangalore 560 004
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
Impleading Application
I. A. No. in
W. P. No. 37681/1997
(LB-RES-PIL)
Arthur Pereira and others
...............Petitioners
and
Union Of India And
Others ...........Respondents
INDEX
|
Sl. No. |
Description |
Page No. |
|
1. |
Memorandum of Impleading Application |
1-13 |
|
2. |
Verifying Affidavit |
14 & 14 A |
|
3. |
Annexure A-1: Relevant
Photographs highlighting the topographical features of the proposed site |
15-18 |
|
4. |
Annexure A-2: A topographical
map of the proposed site detailing the area covered by the various photographs
annexed in Annexures A-1 and A-5 |
19 |
|
5. |
Annexure A-3: True copy of
the official topographical map of the proposed site detailing the features
and the approach funnels |
20 |
|
6. |
Annexure A-4: Relevant
abstract from the EIA of MRPL detailing the distance of the MRPL site from
Bajpe airport |
21 |
|
7. |
Annexure A-5: A photograph of
the survey marking stone of Mangalore-Bangalore Pipeline Ltd. that
crisscrosses the alignment of the proposed project |
22 |
|
8. |
Annexure A-6: A true copy of
the Comprehensive Development Plan of Mangalore covering the region of the
proposed project |
23-24 |
|
9. |
Annexure A-7: Award made by
the Land Acquisition Officer for the proposed project vide No. LAQ SR 3:
89-90 dated 24-2-1992 |
25-29 |
|
10. |
Annexure A-8: Endorsement of
the Land Acquisition Officer stating that there is no order sheet of the
Award in the respective file vide No. E. DIS CA CR 101: 98-99 E1 dated
16-9-98 |
30-31 |
|
11. |
Annexure A-9: Valuation list
of Schedule 2 and Schedule 3 of the
Award revealing the arbitrariness in evaluating the buildings and
structures |
32-35 |
|
12. |
Annexure A-10: Relevant extract of the corrected Award No. LAQ SR:
3:89-90 dated 2-4-1994 |
36-39 |
|
13. |
Annexure A-11: Relevant
extract of Notification No. S. O. 988 dated 5th January 1988
issued by the Ministry of Civil Aviation
|
40-50 |
|
14. |
Annexure A-12: Endorsement of
the Land Acquisition Officer stating that there is no contract between the
Airport Authority and the State Government
|
51-52 |
|
15. |
Annexure A-13: Copy of RTC which reveals the holders name as Airports
Authority of India |
53-54 |
|
16. |
Vakalatnama |
55 & 56 |
Bangalore Advocate/s for Petitioners
Date:
Address for
Service:
H. C. Ravindranath
36, Reservoir Road
Basavanagudi
Bangalore 560 004