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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF APRIL, 2021 PRESENT THE HON’BLE SHRI ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE SHRI JUSTICE S. VISHWAJITH SHETTY WRIT PETITION NO. 20760 OF 2017 (GM-RES-PIL)
Between:
11. Mahejabeen, D/o C. Md. Sadique, W/o Syed Abdul Rawoof, Aged 48 years, Cowl Bazar, Ballari – 583 102
22. Sameena Jalegar, D/o Syed Abdul Rawoof, Aged 26 years, Near Jagruthi Nagar, Cowl Bazar Ballari – 583 102.
33. Gowramma, D/o Eranna, Aged 35 years, Cowl Bazar Ballari – 583 102. 4. Rudramma, D/o Hanumantha Reddy, Aged 28 years, Cowl Bazar, Ballari – 583 102.
55. Kamala, D/o Chalapathi, Aged 35 years, Cowl Bazar, Ballari – 583 102.
66. Kurshid, S/o Sarmas Sab, Aged 38 years, Jagruthi Nagar, Ballari – 583 102.
77. Sharpunissa, D/o Nabi Sab, Aged 39 years, Near Urdu T.C.H., Cowl Bazar, Ballari – 583 102.
88. A. Karim, S/o Abdul Majeed, Aged 45 years, Cowl Bazar, Ballari – 583 102. 9. Praveen D, S/o Govindaraju D, Aged 29 years, Behind Mohammadia College, Cowl Bazar, Ballari – 583 102.
1010. Sharanappa Telagi, S/o Mallikarjun, 27, Behind Mohammadia College, Ballari – 583 102.
1111. Tippeswamy, C/o Masthanappa, Aged 21 years, G.G. Hatti, Ballari – 583 102.
1212. J. Venkatesh, S/o Shanmukha, Aged 28 years, Behind Mohammadia College, Ballari – 583 102.
1313. Ganesha S.B., Sheberappa, Aged 22 years, Behind Mohammadia College, Ballari – 583 102.
1414. S. Suresh S/o Eshwarappa, Aged 28 years, Behind Mohammadia College, Ballari – 583 102.
1515. P. Venkatesh, S/o P. Rajakumar, Aged 17 years, Behind Mohammadia College, Ballari – 583 102.
1616. Ram, S/o Beemappa, Aged 28 years, Near Mohammadia College, Ballari – 583 102.
1717. Pritesh. O. Jain, S/o Omprakash. S. Jain, Aged 28 years, Cowl Bazar, Behind Mohammadia College, Ballari – 583 102.
1818. Deepesh Jain. O., S/o Omprakash. S. Jain, Aged 23 years, Cowl Bazar, Behind Mohammadia College, Ballari – 583 102.
1919. Om Prakash, S/o Samrathmal, Aged 54 years, Cowl Bazar, Behind Mohammadia College, Ballari – 583 102.
2020. Samrathmal R, Raichanath, Aged 77 years, Cowl Bazar, Behind Mohammadia College, Ballari – 583 102.
2121. Bharat Kumar, S/o Samrathmal, Aged 51 years, Cowl Bazar, Behind Mohammadia College, Ballari – 583 102.
2222. Rekha D. Jain, D/o Late Otmalji, Aged 52 years, Behind Mohammadia College, Ballari – 583 102.
2323. Snehit, S/o Bharat Kumar, Aged 25 years, Behind Mohammadia College, Cowl Bazar, Ballari – 583 102.
2424. Dixit D. Jain, S/o Dinesh Kumar, Aged 24 years, Behind Mohammadia College, Cowl Bazar, Ballari – 583 102.
...Petitioners (By Smt. Irfana Nazeer, Advocate)
And:
1 . State of Karnataka, Vidhana Soudha, Bengaluru – 560 001, Represented by Chief Secretary.
2. The Deputy Commissioner, District Ballari, Ballari – 583 104.
3. National Fisheries Development Board, Fish Building, Pillar No:235, PVNR Expressway, SVPNPA, Hyderabad, Telangana 500052, Represented by its Secretary.
4. The Regional Officer, Karnataka State Pollution Control Board, Sy.No.597, Ward No.25, 4th Main, Near Vishnuvardhan Park, Ballari – 583 104.
5. The Commissioner, Ballari City Corporation, Ballari – 583 104.
6. The Executive Engineer, Ballari City Corporation, Ballari – 583 104.
7. The Project Director, Ballari Nirmithi Kendra, Ballari – 583 103.
Respondents (By Shri V. Sreenidhi, Additional Government Advocate for R1 and R2, Shri M.N. Kumar, Central Government Counsel for R3, Shri A. Mahesh Chowdary, Advocate for R4, Shri T.N. Raghupathy, Advocate for R5 and R6, R7 served)
This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to call for the entire records from the respondent Nos. 2, 5, 6 and 7 and issue a writ of mandamus directing the respondent Nos. 2, 5, 6 and 7 as not to construct the Fish Market on the bank of Nalla Cheruvu Area – Raja Kaluve, Storm drain water channel, just opposite to Mahammadiya Educational Institution, Cowl Bazar, Ballari City and etc.
This Writ Petition having been heard and reserved, coming on for pronouncement of order, this day, the Chief Justice pronounced the following:
ORDER
By this petition under Article 226 of the Constitution of India filed in the nature of a Public Interest Litigation, the petitioners who are the residents of Ballari city have raised an objection for construction of a fish market by the Ballari City Corporation (for short, ‘the Corporation’). The objection is for construction of a “New Modern Hygienic Model Wholesale cum Retail Fish Market” (for short “the fish market”) in Ballari city.
2. The fish market is sought to be constructed on a land vesting in the Government of Karnataka. It was decided that the Corporation will construct the fish market. It appears that the third respondent, the National Fisheries Development Board, has agreed to sanction a sum of rupees 123.46 lakhs for the said project. After sanction of funds by the third respondent, the seventh respondent who is the contractor started the construction work. Subsequently, the work has been stopped.
3. It is urged in the petition that the construction of the fish market is sought to be carried out on or near a Raja Kaluve. It is stated that the site of the said market is adjacent to a school of HUDA Education Trust. It is urged that the proposed construction of the fish market is in the residential area. It is submitted that the construction of the fish market will lead to congestion of the road leading to the city and vehicular traffic will be blocked. It is stated that during the school hours, it will create a congestion thereby posing a danger to the students. It is also contended that the fish market being close to Raja Kaluve will lead to pollution. It is alleged that it would cause health hazard to the children taking education in the nearby school. It is stated that the fish market is being constructed by encroaching upon the existing road. It is alleged that even the Deputy Commissioner of the District has taken a firm stand that the fish market should not be constructed at the location which is proposed.
4. There are three main prayers made in the writ petition which read thus:
“(i) Call for entire records from the Respondent No.2, 5, 6 and 7 and issue a writ of mandamus directing the Respondent No.2, 5, 6 and 7 as not to construct the Fish Market on the bank of Nalla Cheruvu area – Raja Kaluve, storm drain water channel, just opposite to Mahammadiya Educational Institution, Cowl Bazar, Ballari city, in the interest of justice and equity.
(ii) Issue a writ of mandamus directing the Respondents 2, 4, 5 to consider the representations of the petitioners and other respondents/educational institutions submitted vide Annexure-C, D, E, G, J, J-1 and L dated 02.07-2015, 08-07-2015, 12-07- 2015, 25-07-2015, 23-09-2015 and 25-03-2017 respectively, in the interest of justice and equity.
(iii) Issue a writ of mandamus directing the respondent No.4, the Pollution Control Board to consider the representation of the public in respect of vide Annexure-F and H dated 16-04-2015 and 30-07- 2015 respectively, in the interest of justice and equity”.
5. The statements of objections have been filed by the first to third respondent, fifth and sixth respondent. In addition, there are affidavits filed on record.
6. Before we go to the submissions made by the learned counsels appearing for the parties, it will be necessary to make a reference to the orders passed by this Court from time to time. The submissions were substantially heard on 7th December, 2020 made by the then the learned counsel appearing for the petitioners, Shri. N.P. Amruthesh. Thereafter, on 8th December, 2020, the following order was passed:
“2. The grievance made in this writ petition in the nature of Public Interest Litigation is as regards the decision of the concerned respondents to set up fish market near Raja Kaluve and Storm Water Drain, more particularly described in the petition. The grievances made in the petition, in short, are as under: (a) Considering the proximity of the proposed market to a school run by Huda Educational Minority Society, hundreds of
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