IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD WRIT PETITION NO.36404 OF 2017 (GM-MM-S) BETWEEN:
SRI R.PRAVEEN CHANDRA S/O. LATE E.RAMAMURTHY AGED ABOUT 44 YEARS NO.59, 12TH MAIN ROAD (OLD 24TH MAIN ROAD) SRINAGARA, B.S.K.1ST STAGE 1ST BLOCK, BANGALORE-560 050 ... PETITIONER (BY SRI K.N.PHANEENDRA, SENIOR COUNSEL A/W SRI SAURAV BHATACHARJEE, ADVOCATE) AND:
1. UNION OF INDIA REP. BY UNDER SECRETARY TO GOVERNMENT OF INDIA MINISTRY OF MINES DEPARTMENT OF MINES SHASTRI BHAVAN NEW DELHI-110 001 2. STATE OF KARNATAKA REP. BY ITS SECRETARY (MINES) DEPARTMENT OF COMMERCE AND INDUSTRIES GOVERNMENT OF KARNATAKA VIKASA SOUDHA, 1ST FLOOR DR. AMBEDKAR ROAD BANGALORE-560 001 3. THE DIRECTOR OF MINES AND GEOLOGY DEPARTMENT OF MINES AND GEOLOGY “KHANIJA BHAVAN”, 5TH FLOOR RACE COURSE ROAD BANGALORE-560 001 ... RESPONDENTS (BY SRI K.A.ARIGA, ADVOCATE FOR R1;
SRI V.G.BHANU PRAKASH, AGA FOR R2 & R3) ---
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 27.07.2017 (ANNEXURE-A) PASSED BY THE FIRST RESPONDENT AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER Heard the learned Senior Counsel appearing for the petitioner, the learned Counsel appearing for the first respondent and the learned Additional Government Advocate appearing for the second and third respondents.
2. This petition is taken up for final disposal considering the narrow controversy involved.
3. The challenge in this petition under Article 226 of the Constitution of India is to an order dated 27th July 2017 made by the first respondent under sub-section (1) of Section 4A of the Mines and Minerals (Development and Regulation) Act, 1957 (‘the Act, 1957’ for short), by which the first respondent accorded approval for premature termination of the mining lease granted in favour of the petitioner by the second respondent. It appears that the second respondent- Government of Karnataka requested the first respondent for grant of permission for premature termination of the mining lease granted to the petitioner. By the impugned order, an approval has been granted by the first respondent for premature termination of the mining lease granted to the petitioner.
4. The submission of the learned Senior Counsel appearing for the petitioner is based on sub-section (3) of Section 4A of the Act, 1957, which provides that, no order making a premature termination of a prospecting licence or mining lease shall be made except after giving the holder of the licence or lease, a reasonable opportunity of being heard.
5. The submission of the learned Counsel appearing for the first respondent is that grant of an opportunity of being heard by the first respondent will an empty formality. Inviting our attention to paragraph-2 of the impugned order, he submitted that before recommending the premature termination of lease, the second respondent-Government of Karnataka had given an opportunity of being heard to the petitioner and the impugned order is based on the conclusions drawn by the Government of Karnataka. The learned Counsel appearing for the first respondent relied upon a decision of the Apex Court in the case of M.C.MEHTA v. UNION OF INDIA1. He would urge that when grant of hearing will be an empty formality, writ Court need not interfere with the impugned order on the ground that the same is passed in breach of principles of natural justice. He also relied upon a decision of the Apex Court in the case of STATE BANK OF PATIALA v. S K SHARMA2 and submitted that though sub-section(3) of Section 4A of the Act, 1957 uses the word ‘shall’, the use of the word ‘shall’ is not decisive.
6. We have carefully considered the submissions. Sub- section (1) of Section 4A of the Act, 1957 reads thus:
“4A. Termination of prospective licences or mining lease.—(1) Where the Central 1 (1999)6 SCC 237 2 (1996)3 SCC 364 Government, after consultation with the State Government is of opinion that it is expedient in the interest of regulation of mines and mineral development, preservation of natural environment, control of floods, prevention of pollution, or to avoid danger to public health or communications or to ensure safety of buildings, monuments or other structures or for conservation of mineral resources or for maintaining safety in the mines or for such other purposes, as the Central Government may deem fit, it may request the State Government to make a premature termination of a prospecting licence or mining lease in respect of any mineral other than a minor mineral in any area or part thereof, and, on receipt of such request, the State Government shall make an order making a premature termination of such prospective licence or mining lease with respect to the area or any part thereof.”
7. As is clear from sub-section (1) of Section 4A of the Act, 1957, once a request is made by the Central Government to the State Government to make a premature termination of mining lease, there is no option for the State Government but to make an order of premature termination of mining lease. In fact, the language used in sub-section (1) of Section 4A of the Act, 1957 makes it clear that on such a request being made by the Central Government, there is a mandate to the State Government to pass an order of premature termination of mining lease.
8. In the present case, it appears that the State Government came to the conclusion, may be after hearing the petitioner, that mining lease granted to the petitioner should be prematurely terminated. While passing order on sub-section (1) of Section 4A of the Act 1957, the statutory mandate is that, the Central Government must consult the State Government. Thus, what was placed before the first respondent-Central Government was an opinion of the second respondent-State Government that there should be a premature termination of mining lease granted to the petitioner. The Central Government was not bound by the said view expressed by the State Government. Therefore, the application of mind by the Central Government was required before issuing an order under sub- section (1) of Section 4A of the Act, 1957 requesting the State Government to premature termination of mining lease. Even assuming that the recommendation of the State Government was made after hearing the petitioner, the said recommendation was not binding on the Central Government. It was a duty of the Central Government to give an opportunity of being heard to the petitioner. Even in the absence of sub- section (3) of Section 4A of the Act, 1957, such an opportunity was required to be granted as the rights of the petitioner are directly affected by the decision taken by the Central Government to inform the State Government to make a premature termination of the mining lease. Therefore, we do not agree with the submission that the compliance with the principles of natural justice was not mandatory in this case and that giving an opportunity of being heard to the petitioner was an empty formality. Therefore, the impugned order cannot be sustained and the same will have to be set aside.
9. Accordingly, we pass the following order:
i) The impugned order dated 27th July 2017 is hereby quashed and set aside;
ii) However, this order will not prevent the first respondent from passing a fresh order in accordance with law after giving an opportunity of being heard to the petitioner;
iii) We have made no adjudication on merits of the grounds, if any, of premature termination;
iv) The petition is allowed in part in the above terms.
Sd/- CHIEF JUSTICE Sd/- JUDGE LB