IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE PRADEEP SINGH YERUR WRIT PETITION NO.63440 OF 2016 (GM-MM-S) BETWEEN:
SRI B.M. KUMAR AGED ABOUT 55 YEARS S/O.MUTHUSWAMY R/AT KADIVALU GRAMA BILLURU POST MUDIGERE TALUK CHIKKAMAGALURU DISTRICT-577 132 ... PETITIONER (BY SMT.SOHANI HOLLA AND SMT.RENUKA DEVI A.S., ADVOCATES) AND:
1. THE DEPUTY DIRECTOR DEPARTMENT OF MINES AND GEOLOGY BENGALURU– 560 001 2. THE DIRECTOR OF MINES AND GEOLOGY DEPARTMENT OF MINES AND GEOLOGY KHANIJA BHAVAN R.C. ROAD BENGALURU– 560 001 ... RESPONDENTS (BY SRI V.G.BHANU PRAKASH, AGA) ---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT RESPONDENT NOS.1 AND 2 TO CONSIDER THE ORDER DATED 21.11.2002 (ANNEXURE-D) PASSED BY THIS COURT IN WP.NOs.34030 AND 34131 OF 2002 WHEREBY PERMIT THE PETITIONER TO DO QUARRYING WITH CONTROLLED BLASTING AS PER THE REPRESENTATIONS DATED 12.08.2016 (ANNEXURE-D), 30.08.2016 (ANNEXURE-G), 02.09.2016 (ANNEXURE-H), 21.09.2016 (ANNEXURE-J) AND TO QUASH THE COMMUNICATION DATED 19.09.2016 (ANNEXURE- A) ISSUED BY RESPONDENT NO.1 AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER Heard the learned counsel appearing for the petitioner.
2. The first prayer in this writ petition under Article 226 of the Constitution of India is for quashing the communication/ order dated 19th September 2016 issued by the Deputy Director, Department of the Mines and Geology. The petitioner is holding a quarrying lease for a non specified mineral granted under the provisions of the Karnataka Minor Mineral Concession Rules, 1994 (for short ‘the said Rules’).
3. By the impugned communication at Annexure-A, the application made by the petitioner to permit the mining in the mining lease area by the use of controlled blasting, has been rejected by observing that there is a public structure at a distance of 120 mtrs. from the mining lease area and by relying upon sub-Rule(2) of Rule 6 of the said Rules.
4. The learned counsel appearing for the petitioner has invited our attention to the terms and conditions in the lease executed by the State Government and in particular, condition No.5 in part III thereof. Her submission is that even if there is a building or public road or public structure within the distance of 200 mtrs. from the mining lease area, blasting activity can be permitted. Her submission is that if the clauses in the lease permit such activity after obtaining a permission, the same cannot be denied to the petitioner. She also relied upon the judgment and order dated 21st November 2002 passed by the learned Single Judge in WP.Nos.34030 & 34131 of 2002. She submitted that under the said order, a permission was granted to quarry building stone in the leased area by adopting the ‘Controlled Blasting Methodology’ in such a manner as not to affect neighbouring residents within the vicinity of 100 mtrs. from the area of the operation.
5. The submission of the learned counsel appearing for the petitioner is that in terms of the said order and in terms of the condition incorporated in the lease, a permission ought to have been granted to the petitioner to adopt a ‘Controlled Blasting Methodology’. She did not dispute that there are one or two houses situated within the distance of 200 mtrs. from the lease area.
6. We have considered the submissions.
7. Sub-rule(2) of Rule 6 of the said Rules reads thus:
“6. ……….
(2) No person shall carry on or allow to carry on any quarrying operations within a distance of fifty metres if no blasting is involved and two hundred metres if blasting is involved from the boundary of any railway line, reservoir, tankbund, canal or other public works and public structures or any public road, or building. 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.”
8. On plain reading of sub-Rule(2) of Rule 6 of the said Rules, there is a prohibition to carry on quarrying operations involving blasting within the distance of 200 mtrs. from the boundary of any railway line, reservoir, tankbund, canal or other public works and public structures or any public road, or building. Sub-rule(2) does not provide that on an application being made by the lessee, the said prohibition can be done away with. In fact, the provisions of sub-Rule (2) of Rule 6 are mandatory.
9. Assuming that the lease contains a clause which enables the lessee to carry on blasting activity with the permission of the authority, the lease is the creation of the said Rules and therefore, the said Rules will prevail and not the clauses in the lease. If there is any inconsistency between the clauses in the lease and the Rules, obviously the Rules will govern the field.
10. Now coming to the order dated 21st November 2002 passed by the learned Single Judge, we must quote the relevant part of the order which reads thus:
“During the hearing of the writ petition, petitioner’s counsel submitted that the petitioner is willing to resort to ‘Controlled Blasting Methodology’ for quarrying the building stone which will not affect the residents residing within the vicinity of less than 100 meters from the area of operation. Government Advocate was directed to get instructions regarding the feasibility of permitting the petitioner to quarry the building stone by the method suggested by him. Government Advocate submits, on instructions from the Director of Mines & Geology, that such a method can be adopted.
In view of the same, the following order is passed. The condition imposed by the Director of Mines & Geology in the order passed in Revision Petition 171/2002 and 172/2002 on 19.8.2002 is modified to the extent that the petitioner is permitted to quarry the building stone in the leased area by adopting “Controlled Blasting Methodology” in such a manner as not to affect the neighboring residents within the vicinity of 100 meters from the area of operation.”
11. Firstly, the order is based on the concession by the learned Government Advocate. Secondly, the attention of the learned Single Judge was not invited to sub-Rule(2) of Rule 6 of the said Rules and thirdly, the said decision of the learned Single Judge does not bind the Division Bench. Hence, the said decision cannot be treated as a binding precedent.
Hence, we cannot find any fault with the order issued by the Deputy Director of refusing to grant permission to the petitioner to do mining activity by the Controlled Blasting as the lease area is within the distance of 200 mtrs. from the buildings which are admittedly in existence. Hence, no relief can be granted in the petition and accordingly, the same is rejected.
The pending interlocutory application does not survive for consideration and is disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE LB