IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. L. NARAYANA SWAMY ACTING CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE P.S. DINESH KUMAR WRIT PETITION NO. 31747/2017 (GM-MM-S) BETWEEN SRI AZAM KHAN AHMED KHAN DESAI S/O AHMED KHAN DESAI AGED ABOUT 39 YEARS R/AT MAKHAN STREET LAKASHMESHWARA SHIRAHATTI TALUK GADAG DISTRICT ... PETITIONER (BY SRI ANIL KUMAR J M, ADVOCATE) AND 1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY DEPARTMENT OF COMMERCE & INDUSTRIES VIKASA SOUDHA, BANGALORE – 560 001 2. THE DIRECTOR DEPARTMENT OF MINES AND GEOLOGY KHANIJA BHAVAN RACE COURSE ROAD BANGALORE – 560 001 3. THE SENIOR GEOLOGIST DEPARTMENT OF MINES AND GEOLOGY HAVERI DISTRICT HAVERI – 581 110 4. THE EXECUTIVE ENGINEER PROJECT IMPLEMENTING DIVISION PROJECT IMPLEMENTING DIVISION HAVERI DISTRICT HAVERI – 581 110 ... RESPONDENTS (BY SRI V G BHANUPRAKASH, AGA) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 24.05.2017 PASSED BY RESPONDENT NO. 3 AT ANNEXURE-J AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, ACTING CHIEF JUSTICE MADE THE FOLLOWING:
ORDER The petitioner is holder of quarry lease bearing Q.L.No.773/2009-2010 to extract ordinary building stone in Survey No.466/4 measuring 20 guntas situated at Savanur Village, Haveri District.
2. It is case of the petitioner that he has engaged an agency to act on his behalf and has also been supplying building stone to contractors for construction of roads etc. The petitioner submits that he has been paying royalty regularly for the quantity of building stone extracted and despite the same, respondent No.3 has issued a demand notice dated 28.01.2016 (Annexure-C) directing him to pay Rs.4,97,021/- as arrears of royalty. The petitioner made a representation dated 24.07.2016 requesting respondent No.3 to adjust royalty from the bills raised by the PWD for carrying on Government works. Since the said representation was not considered, the petitioner filed W.P.No.2097/2017, which was disposed of with a direction to respondent No. 3 to consider the representation after giving an opportunity of hearing. By order dated 24.05.2017, respondent No.3 rejected the representation of the petitioner and directed him to pay the arrears of royalty along with interest. Feeling aggrieved, the petitioner has filed this petition.
3. Learned counsel for the petitioner submits that the action of respondent No.3 is arbitrary as the request of the petitioner for adjustment of royalty amount from the bills of the contractor was rejected without examining the actual facts. He further submits that royalty amount was deducted from the running bills of the contractor/purchaser and the amount so deducted was transferred to respondent No.3 through Government Treasury as per the copies of statement of Treasury Transfers (Annexure-D). In these circumstances, he prayed for quashing of the impugned order.
4. Learned AGA appearing for the respondents –State has supported the impugned order and submits that as per Rule 36 of the Karnataka Minor Mineral Concession Rules, 1994 (for short ‘the Rules’), it is the holder of a quarry lease/licencee who has to pay royalty whether the minor mineral is removed or consumed by him or his agent, manager, employee or contractor. He further submits that the contention of the petitioner that his agency has paid royalty was rightly rejected since the same is impermissible under the Rules. He has also submitted that whatever royalty amount paid in respect of Q.L.No.773/2009-2010 has been taken into consideration and for the remaining amount, the demand notice was issued.
5. We have heard learned counsel for the parties.
6. The question for consideration in this petition is whether royalty paid by the agency is to be accepted or not?
7. Rule 36 of the Rules provides that only the holder of a quarrying lease/licence shall pay royalty in respect of the minor mineral removed or consumed by him or his agent. The Rule is silent as to whether an agency can be held responsible for payment of royalty. Under the circumstances, depending upon the quantity of building stone extracted, the petitioner is required to pay royalty. It is seen that the impugned order has been passed after considering the representation of the petitioner and the fact that no bills are raised in the name of the petitioner. In these circumstances, we are not inclined to interfere with the order impugned.
8. At this stage, learned counsel for the petitioner submits that the petitioner may be permitted to avail the alternative remedy of revision provided under Rule 53 of the said Rules.
9. Therefore, instead of disposing of the matter on merits, we permit the petitioner to approach the Revisional Authority by way of a revision. Since this petition has been pending in this Court for a period of 1½ years, we deem it appropriate to direct the Revisional Authority to consider the Revision Petition on merits, if such a petition is filed within four weeks from today.
10. All contentions of both the parties are kept open.
11. Any amount paid either by the petitioner or his agency shall be taken into consideration by the Revisional Authority while disposing of the revision.
The petition stands disposed of accordingly.
Sd/-
ACTING CHIEF JUSTICE Sd/- JUDGE bkv