IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ WRIT PETITION NO.31351 OF 2019 C/W WRIT PETITION NO.31352 OF 2019 WRIT PETITION NO.31353 OF 2019 WRIT PETITION NO.31561 OF 2019 WRIT PETITION NO.31563 OF 2019 WRIT PETITION NO.31629 OF 2019 (GM-MM-S) BETWEEN:
SRI DANAPPA CHOORI S/O.VIRUPAKSHAPPA AGED ABOUT 51 YEARS R/AT MELAGIRI PLOT HAVERI TALUK HAVERI DISTRICT-581 111 ... PETITIONER IN WP.No.31351/2019 SRI CHENNAVEERAPPA RUDRAPPA BELLARY S/O.RUDRAPPA AGED ABOUT 55 YEARS R/AT MOTEBENNUR VILLAGE BYADAGI TALUK HAVERI DISTRICT-581 128 ... PETITIONER IN WP.No.31352/2019 SRI DANAPPA CHOORI S/O.VIRUPAKSHAPPA AGED ABOUT 51 YEARS R/AT MELAGIRI PLOT HAVERI TALUK HAVERI DISTRICT-581 111 ... PETITIONER IN WP.No.31353/2019 SRI ASHOK S. BANAKAR S/O.SHIVAPPA AGED ABOUT 44 YEARS R/AT KANAKAPURA VILLAGE CHIKKALINGADALLI POST HAVERI TALUK HAVERI DISTRICT-581 128 ... PETITIONER IN WP.No.31561/2019 SRI MALATESH S. BANAKAR S/O.SHIVAPPA AGED ABOUT 46 YEARS R/AT KANAKAPURA VILLAGE CHIKKALINGADALLI POST HAVERI TALUK HAVERI DISTRICT-581 128 ... PETITIONER IN WP.No.31563/2019 SRI G.S.UJJAPPANAVAR S/O.SHIVAPUTHRAPPA UJJAPPANAVAR AGED ABOUT 66 YEARS R/AT “MALLIKARJUNA NILAYA”
1ST CROSS, ELIJAARU LAKUMAPURA HAVERI DISTRICT-581 110 ... PETITIONER IN WP.No.31629/2019 (BY SHRI PRAKASH B.S., ADVOCATE) AND:
1. THE STATE OF KARNATAKA REP. BY ITS SECRETARY COMMERCE AND INDUSTRIES DEPARTMENT (SSI, MINES & TEXTILES) VIKASA SOUDHA BANGALORE-560 001 2. THE DIRECTOR/COMMISSIONER DEPARTMENT OF MINES AND GEOLOGY KHANIJA BHAVANA R.C.ROAD BANGALORE-560 001 3. THE SENIOR GEOLOGIST DEPARTMENT OF MINES AND GEOLOGY G.G.MAGAVI CHAMBERS 2ND FLOOR, P.B.ROAD HAVERI-581 110 ... RESPONDENTS COMMON (BY SHRI VIKRAM HUILGOL, HCGP) ---
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF MANDAMUS DIRECTING THE THIRD RESPONDENT TO EXECUTE THE QUARRYING LEASE DEED WITHIN A TIME FRAME IN FAVOUR OF THE PETITIONERS IN RESPECT OF THE QUARRY LEASE GRANTED VIDE NOTIFICATIONS DATED 03.11.2014 IN WP.Nos.31351/2019 AND 31353/2019, 26.08.2015 IN WP.NO.31352/2019, 29.04.2015 IN WP.NOS.31561/2019, 31563/2019 AND 31629/2019 (ANNEXURE-A) AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER As per the order dated 13th August 2019, today the petitions are taken up for final disposal. The facts of these cases are more or less identical. Therefore, for the sake of convenience, we are making a reference to the facts of the case in WP.No.31351/2019.
2. On the basis of the application made by the petitioners under the provisions of the Karnataka Minor Mineral Concession Rules, 1994 (for short ‘the said Rules), the second respondent granted sanction to grant quarry lease for quarrying of ordinary building stones by the notification dated 3rd November 2014 in exercise of the powers under Rule 27 of the said Rules. The sanction was accorded for grant of quarrying lease for a period of ten years subject to the terms and conditions incorporated therein. According the case of the petitioners, the steps were taken to comply with the conditions in the said notification.
3. By the order dated 27th February 2016, the Senior Geologist purported to cancel the aforesaid notification. Being aggrieved by the said order, a revision petition was filed by the petitioners under Rule 53 of the said Rules before the Additional Director, Department of Mines and Geology. The revision petition was allowed by the judgment and order dated 9th June 2017 and the Revisional Authority proceeded to quash and set aside the order of cancellation of the notification dated 3rd November 2014. A direction was issued by the Revisional Authority that the competent officer shall take action in terms of the 12th August 2016 amendment to the said Rules after obtaining a clear opinion from the Forest Department whether the said area falls within the ambit of Eco-Sensitive Zone or not.
4. The petitioners have relied upon the Environmental Clearance granted by the District Level Environment Impact Assessment Authority-Haveri District.
5. The Senior Geologist has passed an order dated 1st October 2018 cancelling the notification dated 3rd November 2014. Again a revision petition was filed by the petitioners for challenging the said order. By the judgment and order dated 16th November 2018, the revision petition was allowed. The English translation of the operative part reads thus:
“I, Sri Panduranga, Additional Director, Department of Mines & Geology, North Region, Bellary & Revisional Authority, by exercising the powers delegated under Rule 53 (4) of K.M.M.C.R. 1994, Government Notification No. CI;180-mmn-2006 dated 24-11-2006 and Government Order No. PI-01.M.G.S.2017 dated 06-01-20, Bangalore, Dated 06-01-2017, have allowed the Revision Petition. The order of the Competent Officer canceling the Notification of Quarrying Lease for the 2nd time dated 01-10-2018, has been set aside. The Competent Officer has been instructed to collect the fees/ arrears/ penalty from the Petitioner and to take further action under the provisions of Karnataka Minor Mineral Concession Rules, 1994. This Order is applicable only to the affected order passed by the Competent Officer. If there are any local problems, it is the duty of the Competent Officer to solve the same and collect any fee/ arrears/ penalty from the Petitioner. The Revision Petition No. 28/2018-19 has been disposed of.”
(underlining supplied) 6. As quarrying lease was not executed, this petition under Article 226 of the Constitution of India has been filed where the prayer is for issuing a writ of mandamus directing the execution of quarrying lease in terms of the notification dated 3rd November 2014.
7. The submission of the learned counsel appearing for the petitioners is that firstly sub-rule(1) of Rule 8-B of the said Rules has no application inasmuch as before 12th August 2016, the notification dated 3rd November 2014 was issued and by order of the Revisional Authority dated 16th November 2008, the said notification dated 3rd November 2014 was revived. His submission is that the State Government is under an obligation to implement the notification dated 3rd November 2014.
8. The learned High Court Government Pleader placed on record the Office Memorandum dated 8th August 2019 issued by the Government of India, Ministry of Environment, Forest and Climate Change (IA Division). He submitted that in view of the said Office Memorandum, prior clearance from Standing Committee of the National Board for Wildlife is mandatory. He submitted that apart from the issue of applicability of clause(e) of sub-rule(2) of Rule 8-B of the said Rules, if various conditions including the requirements in the Office Memorandum dated 8th August 2019 are not complied with, the petitioners are not entitled to any relief. He submitted the writ of mandamus as prayed for cannot be issued.
9. We have given careful consideration to the submissions. The notification dated 3rd November 2014 (Annexure-A) by which sanction was accorded under Rule 27 of the said Rules to grant quarrying lease to the petitioners amounts to disposal of the application made by the petitioners for grant of quarrying lease. As stated earlier, the said notification was cancelled by the order dated 27th February 2016. The Revisional Authority restored the notification by the order dated 9th June 2017. The notification was cancelled on the second occasion was restored by the order dated 16th November 2018 in a revision petition. The result of the orders in the revision petitions is that notification dated 3rd November 2014 stands revived and continues to operate. Therefore, on 12th August 2016, when the said Rules were amended, the application made by the petitioners for grant of quarrying lease was not pending. Hence, sub-rule(2) of Rule 8-B of the said Rules will have no application and therefore, it is not necessary to deal with the issue regarding applicability of clause (e) of sub-rule(2) of Rule 8-B of the said Rules.
10. Thus, today the position is that as the order passed in the second revision petition was not challenged by the respondents and therefore, the notification dated 3rd November 2014 has become final. Therefore, the State Government will have no option but to execute the lease in terms of the said notification provided all the terms and conditions therein are complied with by the petitioners.
11. As regards the effect of the Office Memorandum dated 8th August 2019, we are not entering into the controversy whether the Office Memorandum will apply and whether it is prospective or retrospective. It is for the concerned authority to decide the same.
12. Accordingly, we dispose of the petitions by passing the following order:
i) We direct the respondents to act upon the notifications at Annexure-A in these petitions and to execute quarrying lease in favour of the petitioners in this group of petitions on the terms and conditions mentioned in the respective notifications;
ii) The quarrying lease shall be executed in terms of the notifications at Annexure-A after due verification of the compliance made by the petitioners with the terms and conditions incorporated in the said notifications. While verifying whether compliances have been made, the concerned authority will deal with the Office Memorandum dated 8th August 2019 provided it is applicable;
iii) Subject to verification made as aforesaid, the quarrying lease shall be executed in favour of the petitioners as expeditiously as possible and in any event within a period of three months from today;
iv) The petitions are allowed on the above terms.
Sd/- CHIEF JUSTICE Sd/- JUDGE LB