IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR WRIT PETITION NOS.21678-21679 OF 2019 (GM-MM-S) BETWEEN SRI CHANDRAHAS T. AMIN S/O THIMMAPPA T. AMIN AGED ABOUT 45 YEARS R/AT PITHRU CHAYA AMIN COMPOUND GANDHINAGARA KAVOORU, MANGALURE TALUK DAKSHINA KANNADA DISTRICT – 575 001 (BY SRI S. RAJASHEKAR, ADVOCATE) AND 1. STATE OF KARNATAKA DEPARTMENT OF MINES & GEOLOGY M.S. BUILDING, DR.AMBEDKAR ROAD BANGALORE – 560 001 REP. BY ITS SECRETARY 2. THE DIRECTOR DEPARTMENT OF MINES & GEOLOGY KANIJA BHAVAN, RACE COURSE ROAD BANGALORE – 560 001 ... PETITIONER 3. THE DEPUTY DIRECTOR DEPARTMENT OF MINES & GEOLOGY 4TH FLOOR, MINERAL HOUSE HAMPANAKATTA, MANGALORE DAKSHINA KANNADA DISTRICT – 575 001 ... RESPONDENTS (BY SHRI V. G. BHANUPRAKASH, AGA FOR RESPONDENTS; SHRI A. KESHAVA BHAT, ADVOCATE AS INTERVENER) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-3 TO CONSIDER THE APPLICATIONS SUBMITTED BY THE PETITIONER DATED 19.03.2019 AND 27.03.2019 AND THEREBY DIRECT R-3 TO ISSUE MINERAL DISPATCH PERMIT AS PRAYED FOR BY THE PETITIONER IN THE APPLICATIONS VIDE ANNEXURE-A AND B AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER Heard the learned counsel appearing for the petitioner and the learned Additional Government Advocate for the respondents. We have also heard the learned counsel Shri A.Keshava Bhat representing the petitioner in W.P.No.16983/2017, who has tendered on record the affidavit filed by the third respondent in the said writ petition.
2. It is not in dispute that the petitioner has been granted two mining leases vide DKD 341 and DKD 252 respectively. It is also not in dispute that as of today, both the mining leases are valid and substantiating. As regards the first mining lease, a notice has been issued to the petitioner on 25th March 2019 calling upon him to show cause as to why mining lease should not be cancelled for committing violation of the terms and conditions. As regards the second mining lease, similar notice was issued on 28th March 2019. In the said notice in respect of second mining lease, it is alleged that the petitioner carried out mining activity outside the leased area and therefore, is liable to pay penalty of Rs.3,17,43,660/-.
3. The grievance made in the petition is very limited. The grievance is only as regards denial of Mineral Dispatch Permit (for short ‘MDP’) for transporting the mining material excavated from leased area of the second lease (DKD 252).
4. The learned Additional Government Advocate has rendered an affidavit of the third respondent dated 30th May 2019. In paragraph-4 of the said affidavit, the third respondent has stated thus:
“It is submitted that issuance of MDP will be considered after verification in the field and verifying the stock of ordinary Building stone, already extracted till the date of application seeking MDP.”
5. The learned counsel appearing for the petitioner in W.P.No.16983/2017 who seeks intervention submits that in fact, mining lease which is the subject matter of prayer made in this writ petition is liable to be cancelled and that is the assurance given by the State Government to this Court in the said writ petition by filing an affidavit dated 5th April 2019 of the third respondent.
6. We have considered the rival submissions.
The assurance given to the Court in W.P.No.16983/2017 is that an action will be taken against the petitioner and in the affidavit filed therein, it is stated that show cause notice for cancellation of lease has been issued. Accordingly, a show cause notice dated 28th March 2019 has been issued in respect of the said mining lease.
7. So long as the mining lease is valid and subsisting, the respondents cannot refuse to issue MDP in respect of minerals lawfully excavated by the petitioner from the leased area. Only on the ground that there is a demand for penalty and that a show cause notice of cancellation has been issued, MDP in respect of minerals lawfully excavated on the basis of subsisting lease cannot be denied.
8. The assurance of the third respondent in the affidavit rendered today means that after making necessary examination, MDP will be issued to the petitioner in respect of the minerals lawfully excavated from the area which is the subject matter of the lease. There is no basis for the apprehension expressed by the intervener that the MDP will be granted even in respect of minerals allegedly excavated beyond the leased area.
9. It is obvious that even if MDP is issued in respect of lawfully excavated mineral, no equity will be created in favour of the petitioner and it will not come in the way of the respondents in taking action of cancellation of the lease, if grounds for cancellation are made out.
10. In view of what is held above, we pass the following order:
(i) We accept the assurance in paragraph-4 of the affidavit of the third respondent dated 30th May 2019 filed in these petitions;
(ii) We direct the third respondent to consider the case of the petitioner for issuing MDP in respect of the minerals lawfully excavated from the leased area, subject matter of lease bearing DKD 252 in the light of what is held in this judgment and order;
(iii) Appropriate decision will be taken within a period of four weeks from today;
(iv) Accordingly, the writ petitions are disposed of in above terms;
(v) There will be no order as to costs.
Sd/- CHIEF JUSTICE Sd/- JUDGE SN