IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE S.R. KRISHNA KUMAR WRIT PETITION NO. 35133 OF 2019 (GM-MMS) BETWEEN:
Smt. Rathnavva Ravi Shiggavi, W/o Ravi Shiggavi, Aged about 48 years, R/o Gundenahalli Village, Byadagi Taluk, Haveri District – 581 106.
(By Shri Prakash B.S., Advocate) AND:
1. The State of Karnataka, Represented by its Chief Secretary, Vidhana Soudha, Bengaluru – 560 001.
2. The State of Karnataka, Represented by its Secretary, Department of Commerce and Industries (MSME & Mines), Vikasa Soudha, Dr. Ambedkar Veedhi, Bengaluru – 560 001.
. . . Petitioner 3. The Commissioner and Director, Department of Mines and Geology, Khanija Bhavana, Race Course Road, Bengaluru – 560 001.
4. The Senior Geologist, Department of Mines and Geology, P.B. Road, Haveri District, Haveri – 581 110.
5. The Deputy Commissioner and Licensing Authority under the Karnataka Regulation of Stone Crushers Act, Haveri District, Haveri – 581 110.
6. The Assistant Commissioner, Haveri Sub-Division, Haveri – 581 110.
. . . Respondents (By Shri Y.H. Vijaykumar, Principal Government Advocate for R1 to R6) This writ petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the order dated 29.12.2018 passed by the Deputy Commissioner, Haveri District, Haveri vide Annexure – A and to direct the 5th respondent to issue appropriate challan forthwith for remittance of fine amount for conversion as prescribed under Rule 107 of Karnataka Land Revenue Rules 1966.
This writ petition having heard and reserved for orders/judgment, coming on for pronouncement of Order, this day, Chief Justice delivered the following:
ORDER The order subject matter of challenge in this petition under Article 226 of the Constitution of India is of 29th December 2018 passed by the Deputy Commissioner of Haveri District by which an application made by the petitioner for grant of permission for diversion of the use of schedule land held for the purpose of agriculture in accordance with Sub Section 9 of Section 95 of the Karnataka Land Revenue Act, 1964 (for short ‘the said Act of 1964’), has been rejected.
2. The petitioner is claiming to be the owner of land in Sy.No.382/B of Motebennur Village, Byadagi Taluk, measuring 2 acres (described as ‘the schedule land’). According to the case of the petitioner, she desired to apply for grant of a licence under the provisions of the Karnataka Regulation of Stone Crushers Act, 2011 (for short ‘the said Act of 2011’) for conducting stone crushing activity. Therefore, an application was made by the petitioner initially under Sub Section 2 of Section 95 of the said Act for conversion of the schedule land from agricultural use to its use for setting up a stone crusher unit. The said application was rejected on 3rd January 2011 by an endorsement. Thereafter, Sub Section 9 of Section 95 was incorporated in the said Act of 1964 by the amendment Act No.2 of 2015 with effect from 8th January 2015. Accordingly, the petitioner applied for conversion under the said provision. By the impugned order dated 29th December 2018, the said application was rejected on the ground that as per the report of the Deputy Conservator of Forest, Haveri Division, the schedule land is falling within the Eco Sensitive Zone of Ranebennur Black Buck Sanctuary and it was within the distance of 624 from Krishna Muruga Reserve Forest. It was observed that grant of a licence under the said Act of 2011 will be in the violation of the directions issued by the Apex Court.
3. The submission of the learned counsel appearing for the petitioner is that under Sub Section 9 of Section 95, the grant of conversion is automatic. When an application is made under Sub- Section 9 of Section 95 together with the fine applicable, the conversion is deemed to have been granted and there is no question of rejection of the said application, as there is no power to reject such application. His contention is that in view of the deeming fiction, there is no question of exercising power of rejecting the application for deemed conversion.
4. The learned AGA opposed the petition by pointing out that the petitioner is disentitled to grant of licence under the said Act of 2011, as the schedule land which is sought to be used for industrial purpose, is at a distance of 625 meters from Krishna Muruga Reserve Forest and is falling in Eco Sensitive Zone of Ranebennur Black Buck Sanctuary. He pointed out the report dated 28th December 2018 submitted by the Deputy Conservator of Forest, Haveri Sub Division. He relied upon the office memorandum dated 8th August 2019 issued by the Government of India, Ministry of Environment, Forest and Climate Change. He submitted that the memorandum is applicable for developmental projects located within 10 kilometers of National Parks/Wildlife Sanctuaries. He has also pointed out that mining stone quarry and running of stone crushers is prohibited in the Eco Sensitive Zone and therefore, no fault can be found with the impugned order.
5. The learned counsel appearing for the petitioner relied upon notification dated 6th July 2017 issued by the Ministry of Environment, Forest and Climate Change. According to him, Eco Sensitive Zone consists of belt of 100 meters.
6. We have considered the submissions. Sub Section 9 of Section 95 of the said Act reads thus:
“(9) Whenever any occupant of land assessed or held for purpose of agriculture wishes to divert such land or any part thereof for the purpose of quarrying of minor minerals, whether specified or non specified in accordance with the rules governing quarrying of minor minerals or stone crushing activity under the Karnataka Regulation of Stone Crushers Act, 2011 (Karnataka Act No.8 of 2012), shall make an application along with the fine applicable to the Deputy Commissioner for diversion of such land. On such application, the permission for diversion of such land shall be deemed to have been granted subject to obtaining lease or licence or working permission under the said enactments”
(underline supplied) Section 95 deals with the change of use of an agricultural land and the procedure for use of agricultural land for other purposes. Sub Section 9 is applicable if an occupant of the land held for the purpose of agriculture wishes to divert such land for the purpose of quarrying of minor minerals, whether specified or non specified, or stone crushing activity under the said Act of 2011. Such occupant is required to make an application along with the fine applicable to the Deputy Commissioner for diversion of such land. Sub Section 9 provides that when such application is made along with the deposit of payment of fine, a permission for diversion of the said land shall be deemed to have been granted subject to obtaining lease or licence or working permission, as the case may be, for quarrying minor minerals or for stone crushing activity. Thus, the grant of permission for diversion is automatic under Sub Section 9 of Section 95 on an application being made for diversion along with the fine applicable to the Deputy Commissioner. If an application for conversion is made after making the payment prescribed fine, the conversion under Sub Section 9 is automatic, which cannot be stopped by any order passed by the Deputy Commissioner or any other Authority.
7. However, such conversion is subject to obtaining a lease or a licence or a working permission as the case may be, for the purpose of quarrying or for carrying on stone crushing activity. As such a deemed permission is subject to grant of a lease or a licence, the occupant can act upon such a deemed permission under Sub Section 9, only when a quarrying lease is granted if he wants to use the agricultural land for quarrying of minor minerals or only when a licence is granted to him under the said Act of 2011, when he intends to use the land for stone crushing activity. The occupant can commence the use of the agricultural land for quarrying or for stone crushing only when a lease or a licence as aforesaid is granted.
8. If an application is made by the petitioner after obtaining deemed permission under Sub Section 9 of Section 95 either for grant of a quarrying lease or for grant of a licence for stone crushing under the said Act of 2011 and the application for grant quarrying lease or the application for licence, as the case may be, is rejected, the occupant cannot use the agricultural land for non agricultural purposes and it will continue to be a land for agricultural use. Thus, in short, if after a deemed conversion under Sub Section 9 of Section 95 is granted, the said permission becomes effective only after quarrying lease or a stone crushing licence, as the case may be, is granted. Merely because deemed conversion is obtained, the occupant does not ipso facto becomes entitled to use the said land for non agricultural purposes.
10. In the present case, even if a deemed conversion is granted, it is not mandatory for the Competent Authority under the said Act of 2011 to grant a licence for stone crushing. The petitioner is entitled to said licence provided, he makes out a case for grant of such a licence in accordance with the said Act of 2011 and the Rules made under. Even after grant of deemed conversion, an application for grant of a licence under the said Act of 2011 can be rejected if there is some statutory prohibition.
11. In the present case, apart from the fact that the grant of deemed conversion is automatic and the Deputy commissioner has no power to reject the application once the payment of fine is made, the issue whether the petitioner is entitled to licence for stone crushing need not be gone into at this stage. The question whether the petitioner is disentitled to a stone crushing licence in view of the proximity of the schedule land to a forest or to a sanctuary is required to be gone into when the application for grant of licence under the said Act of 2011 is considered by the concerned Competent Authority.
12. Once an application is made under Sub Section 9 of Section 95, the Deputy commissioner to whom application is made is under an obligation to communicate the fine payable to such applicant in accordance with Rule 107 of the Karnataka Land Revenue Rules, 1966 (for short ‘the said Rules of 1966’) and once such fine is paid, the deeming fiction under Sub Section 9 of Section 95 immediately comes into operation.
13. Hence, the petition must succeed and we pass following:
ORDER (i) The impugned order dated 29th December 2018 – Annexure E is set-aside on the ground that the Deputy commissioner had no power to do so;
(ii) The application dated 7th April 2015 made by the petitioner under Sub Section 9 of Section 95 of the said Act is restored. The Deputy Commissioner, Haveri shall communicate the amount fine payable for conversion in accordance with Rule 107 of the said Rules of 1966 to the petitioner within a period of three weeks from today;
(iii) As the application for conversion dated 7th April 2015 already pending, on payment of fine as demanded by the Deputy Commissioner, a deemed conversion in respect of the schedule land as prayed for in application dated 7th April 2015 shall be deemed to have been granted to the petitioner under Sub Section 9 of Section 95 of the said Act;
(iv) We make it clear that the issue whether the petitioner is entitled to a licence under said Act of 2011 is kept open. While considering the application for grant of a licence under the said Act of 2011, even the grounds which are set out in the impugned order can be considered in accordance with law;
(v) We make it clear that even if a deemed conversion as above is granted, the petitioner is entitled to use the said land for non agricultural purpose of stone crushing only after a licence under the said Act of 2011 is granted;
(vi) The petition is allowed on the above terms with no orders as to cost.
Sd/- CHIEF JUSTICE Sd/- JUDGE mr