IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH 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.50392 OF 2019 (GM-MMS) (F.R.NO.50245 OF 2019) BETWEEN:
MR.S.GOVINDASWAMY AGED 34 YEARS S/O SARUVEGOUNDER R/OF PERESANDRA CHIKKABALAPUR TALUK & DISTRICT – 562 103 (BY SHRI VICTOR MANOHARAN S, ADVOCATE) AND:
1. THE STATE OF KARNATAKA BY ITS SECRETARY DEPARTMENT OF INDUSTRIES & COMMERCE VIKASA SOUDHA BENGALURU – 560 001 2. THE DIRECTOR DEPARTMENT OF MINES AND GEOLOGY NO.49, KHANIJA BHAVAN RACE COURSE ROAD BENGALURU – 560 001 3. THE SENIOR GEOLOGIST DEPARTMENT OF MINES AND GEOLOGY OFFICE OF THE SENIOR GEOLOGIST CHIKKABALAPUR DISTRICT – 562 101 ... PETITIONER 4. THE DEPUTY COMMISSIONER CHIKKABALAPUR SUB DIVISION CHIKKABALAPUR – 562 105 5. THE DEPUTY CONSERVATOR OF FOREST CHIKKABALAPUR DISTRICT CHIKKABALAPUR – 562 105 ... RESPONDENTS (BY SHRI V.G.BHANUPRAKASH, AGA) ---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ENDORSEMENT DATED 03.07.2019 ISSUED BY THE THIRD RESPONDENT PRODUCED AS ANNEXURE-A AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER Heard the learned counsel appearing for the petitioner and the learned Additional Government Advocate appearing for the respondents.
2. This petition will be governed by the judgment and order dated 16th August 2019 passed by a Division Bench of this Court in W.P.No.10601/2019 and other connected matters. In paragraphs 47 to 49 of the said decision, this Court held thus:
“47. In short the conclusions can be summarized as under:
(a) Rule 8-B of the said Rules, as amended on 12th August, 2016 is constitutionally valid;
(b) All pending applications for grant of mining leases/licenses under the said Rules which were filed before 12th August, 2016 and pending on the said date shall become automatically ineligible unless the cases specifically fall within any of the exceptions specifically carved out in clauses (a) to (d) and (d-1) of sub-rule (2) of Rule 8-B.
(c) Only those application which were filed before 12th August, 2016 to which any of the clauses (a) to (d) and (d-1) of sub-rule(2) of Rule 8-B applies, can be decided in accordance with the Rules prevailing prior to 12th August, 2016;
(d) While deciding the question whether clauses (a) to (d) and (d-1) of sub-rule (2) of Rule 8-B are attracted, if any deeming fiction providing for grant of deemed no objection certificates is expressly available under any of the express provisions of the said Rules such as sub-rule (6) of Rule 8, the same could be applied;
(e) In view of express provisions of sub-rule (1) and (2) of Rule 8-B, merely because there is a failure on the part of the authorities to obtain clearances/no objection certificates/reports, the mandate of sub-rule (1) of Rule 8-B cannot be ignored and it shall apply with full force inasmuch as by sub-rule (1) of Rule 8-B, all applications received prior to 12th August, 2016 were made ineligible. The only exception provided is in the sub-rule (2) in case of the applications which are governed by clause (a) to (d) and (d-1) of sub-rule (2). No other exception to sub-rule (1) of Rule 8-B has been provided in the said Rules and therefore, cannot be carved out by the Court.
48. Now coming to the petitions in hand, wherever the applications made before 12th August, 2016 are pending as of today, the same will have to be considered only in the context of applicability of exceptions carved out by sub-rule (2) of Rule 8-B. In case of those applications where endorsements/ rejection have been issued, those applications will have to be reconsidered only for ascertaining whether any of the clauses (a) to (d) and (d-1) of sub-rule (2) of Rule 8-B are attracted. To decide whether any of the clauses (a) to (d) and (d-1) are applicable, factual adjudication will have to be made. It must be noted here if on holding inquiry, it is held that none of the clauses (a) to (d) and (d-1) are attracted, then the applications will have to be held as ineligible. In some cases, deeming provision of sub-rule (6) of Rule 8 has been invoked to establish applicability of sub-rule (2) of Rule 8 (B). Whether deeming fiction is applicable or not is an issue which requires factual adjudication. We must note here that as, in this group we are not called upon to decide the issue of interpretation of applicability of outer limit of 24 months provided in clause (e) of sub-rule (2) of Rule 8-B, the said issue is kept open. However, Writ Petition No 38427 of 2018 will be governed by the order dated 28th June, 2019 and will stand disposed of in terms of the said order.
49. Accordingly, in view of the law which we have laid down, we pass the following order in all petitions, except Writ Petition No 38427 of 2018:-
i) In those petitions where applications made for grant of mining leases made before 12th August 2016 are pending, the same shall be examined by the Competent Authority only in the context of applicability of sub-rule (2) of Rule 8-B as amended in the light of what we have held earlier;
(ii) In those cases where endorsements of rejection have been issued, by withdrawing the said endorsements, the applications for mining leases filed before 12th August 2016 shall be reconsidered only in the context of applicability of sub-rule (2) of Rule 8-B. Even applicability of deeming fiction under sub-rule (6) of Rule 8 shall be decided wherever such a plea is raised. Appropriate order shall be passed within a period of three months from today;
(ii) Appropriate order shall be passed in the light of what is held by us in paragraph 47 (forty- seven) above;
(iii) The writ petitions are disposed of on the above terms;
(iv) There will be no order as to costs.”
4. In the light of the said decision, we dispose of the petition by passing the following order:
(i) The impugned endorsement is hereby quashed and set aside;
(ii) Appropriate orders shall be passed on the application made by the petitioner in accordance with what is held in paragraph 47 of the aforesaid decision within a period of three months from today.
Sd/- CHIEF JUSTICE Sd/- JUDGE AHB