IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH 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. 28149 OF 2019 (GM-MM-S) BETWEEN:
M/S. ROBO SILICON LTD., REPRESENTED BY SENIOR MANAGE(LEGAL) OFFICE AT BANJARA HILLS ROAD NO.10, DURGA TOWERS 4TH FLOOR, HYDERABAD – 500 034.
(BY SHRI.K.N. PHANEENDRA, SR.COUNSEL FOR SHRI.S.RAJASHEKAR, ADVOCATE) AND:
1. STATE OF KARNATAKA DEPARTMENT OF MINES & GEOLOGY KHANIJA BHAVAN RACE COURSE ROAD BENGALURU – 560 001.
REPRESENTED BY ITS SECRETARY.
2. THE DEPUTY DIRECTOR MINES & GEOLOGY FIRST FLOOR, JUGAL TOWERS MALLIKATTA, MANGALURU D.K.DISTRICT – 575 001.
3. KIOCL LIMITED PANNAMBURU, MANGALURU D.K.DISTRICT – 575 002. REPRESENTED BY ITS ASSISTANT GENERAL MANAGER.
... PETITIONER ... RESPONDENTS (BY SHRI. Y.H. VIJAY KUMAR, PRL.G.A, FOR R-1 & R-2 SHRI.Y.K.NARAYANA SHARMA, ADVOCATE FOR R-3 SHRI. K.CHANDRANATH ARIGA, ADVOCATE FOR IMPLEADING APPLICANT ON IA 1/2019.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED: 24.05.2019 PASSED BY THE R-2 VIDE ANNEXURE-A AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER Heard the learned Senior counsel appearing for the petitioner, the learned counsel appearing for the third respondent and the learned counsel appearing for the impleading applicant.
2. By the consent of learned counsel for the parties, the matter is taken up for hearing.
3. The challenge in this writ petition under Article 226 of the Constitution of India is to the order dated 24th May 2019 (Annexure-A). By the said order, the mining lease granted to the petitioner which was valid for a period of twenty years from 27th August 2008 has been ordered to be cancelled. It appears that the impugned order has been passed in exercise of power under sub-Rule(2) of Rule 6 of the Karnataka Minor Mineral Concession Rules, 1994 (for short ‘the said Rules’), on the ground that the mining lease area is coming within the distance of 200 metres of the pipeline of the third respondent.
4. The learned counsel appearing for the third respondent contends that a survey was carried out on *19th July 2017 after notice to the petitioner and in the presence of the representatives of the petitioner, which discloses that the pipeline is within the distance of 200 metres from the mining lease area.
5. Today, the learned AGA has placed on the record, the documents showing that there was a survey earlier conducted in January 2017.
6. Sub-Rules(2) and (3) of Rule 6 of the said Rules reads thus:-
6. General conditions of quarrying lease and licence.-
(1) xxxxxxxx (2) No person shall carry on or allow to carry on any quarrying operations within a distance of fifty meters if no blasting is involved and two hundred meters if blasting is involved from the boundary of any railway line, reservoir, tank bund, canal or other public works and public structures or any public road, or building, except with the written permission of the concerned authorities or the Competent Authority. The holder of a quarrying lease or licence shall also abide by such conditions as the Competent Authority may impose to carry on quarrying operations in the vicinity of the aforesaid buildings or places.
* Corrected vide Court Order dated 08.12.2021 (3) In case of breach by the lessee or licence or his transferee or assignees of any of the conditions specified in these rules or in the quarrying lease deed or licence, the Competent Authority shall require by notice in writing the lessee or licence to remedy the breach within thirty days from the date of notice and if the breach is not remedied within such period the Competent Authority may levy a fine not exceeding (ten thousand rupees) in the case of non- specified minor minerals and ( fifty thousand rupees ) in cse of specified minor minerals (and the Competent Authority may without prejudice to any other action that may be taken against such lessee licensee, transferee or assignee determine the lease or licence after providing an opportunity of being heard.) (Provided that if a lease or license holder has been imposed with a fine under the above rule for three times during the lease period, the lease or license shall be terminated).
7. In the present case, the cancellation of lease is on the ground that the quarrying lease area is within the distance of 200 metres from the pipeline of the third respondent.
8. We have carefully perused the impugned order.
9. Firstly, the impugned order refers to the technical report of the office of the Geologist recording that the mining area comes within 200 metres of the pipeline laid by the third respondent. There is a reference to the earlier order of the cancellation of the said mining lease. The earlier order was passed on 28th March 2019.
10. We find that the earlier order was set aside by the order dated 25th April 2019 of this Court. The said order of this Court records a finding that the procedure followed while hearing the parties is defective and therefore, an order of remand was passed to the Deputy Director to enable him to pass appropriate order. The impugned order is passed in compliance with the said order dated 25th April 2019.
11. Perusal of the impugned order shows that no reasons have been recorded and nothing is stated about the basis of the conclusion that stone quarrying mining lease area is coming within the distance of 200 metres of the pipeline laid by the third respondent.
12. Another contention raised by the learned counsel appearing for the third respondent is that certain portion of the land vesting in the third respondent is included in the mining lease area. However, the cancellation is not on that ground.
13. Reliance is placed by the State Government on the survey carried out on 25th January 2017. The learned counsel for the third respondent has relied upon the survey carried out on 19th July 2017.
14. Our attention is invited to the order passed by the learned Additional District and Sessions Judge, Mangalore, on an interim application taken out by the third respondent which is of 12th July 2018, in which, a prima-facie finding has been recorded that a doubt arises whether the Assistant Commissioner visited the spot after giving notice to the present petitioner.
15. When an order of such a drastic nature of canceling the lease is passed in exercise of the power under sub-Rule(2) of Rule 6, it is obvious that unless it is admitted by the lessee that any part of the lease area is within the distance of 200 metres of the pipeline, a survey has to be carried out after notice to the petitioner and other concerned parties for deciding the issue of distance between the mining lease area and the pipeline. If there is no dispute about the distance as stated earlier, there may not be necessity to carry out the survey. However, if there is a dispute, the survey has to be carried out. Only after notice to the lessee, after providing him a copy of the survey report and after granting an opportunity of being heard to him and all concerned parties, an order of cancellation of a lease can be passed by recording brief reasons.
16. In the present case, as observed earlier, the impugned order does not record that the conclusion drawn is based on a particular survey conducted after due notice to the petitioner. When such a drastic power is exercised of cancellation of the lease, the authority must record the reasons in brief. However, no reasons have been recorded. Hence, the order is illegal.
17. As regards the survey carried out on 19th July 2017, there are documents placed on the record showing that the same was carried out in the presence of the representatives of the petitioner. However, there is a prima facie finding recorded by the District Court on the I.A. filed by the third respondent that there is nothing placed on the record to show that the survey was carried out after actual visit to the spot after giving notice to the petitioner.
18. It is for the concerned authority to decide, whether a fresh survey is necessary in the facts and circumstances of the case.
19. In the circumstances, we pass the following order:-
(i) The impugned order dated 24th May 2019 (Annexure- A) is hereby set aside;
(ii) We direct the representative of the petitioner and the third respondent to appear before the Deputy Director of Mines and Geology Department, * Mangalore, on * 28th January 2022 at 3 p.m;
(iii) The Deputy Director will apply his mind after perusing the record to the question whether a fresh survey and measurement is required to be carried out. If he is satisfied that either the petitioner has admitted that the mining lease area is within the distance of 200 metres or if a survey is already carried out with notice to the petitioner, it may not be necessary to order a fresh survey;
(iv) If a fresh survey is ordered, the same shall be conducted after notice to the petitioner as well as third respondent. In such an event, copies of the survey report shall be furnished to the petitioner and the third respondent;
(v) After giving an opportunity of being heard to the parties and after considering the material on record as well as a fresh survey report, if any, a fresh order shall be passed by the Deputy Director within a period of four months from *this day i.e., 8th December 2021;
* Corrected vide Court Order dated 08.12.2021 (vi) We make it clear that the issue whether the impleading applicant is necessary or proper party is kept open;
(vii) We make it clear that we have made no adjudication on merits of the controversy and on the issue whether a case is made out for cancellation of the lease;
(viii) The order dated 15th July 2019 passed by this Court will continue to be operative till an order is passed by the Deputy Director in terms of these directions.
(ix) The petition is partly allowed with the above directions.
Sd/- CHIEF JUSTICE Sd/- JUDGE Srl.