IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH 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 NO.35423/2018 (GM-MM-S) BETWEEN:
SRI. T. YATISH S/O SRI. NAGARAJU AGED ABOUT 48 YEARS R/AT NO. 279, 8TH “B” MAIN ROAD BINNYPET, BENGALURU-560 040 ... PETITIONER (BY SHRI. GANAPATHY BHAT VAJRALLI, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY VIDHANA SOUDHA DR.B.R.AMBEDKAR VIDHI BENGALURU-560 001 2. THE SECRETARY COMMERCE AND INDUSTRIES DEPARTMENT OF COMMERCE VIKASA SOUDHA, BENGALURU-560 001 3. THE SENIOR GEOLOGIST DEPARTMENT OF MINES AND GEOLOGY OFFICE AT:BANGALORE URBAN DISTRICT V.V.TOWER, DR.B.R.AMBEDKAR VIDHI BENGALURU-560 001 4. THE DIRECTOR DEPARTMENT OF MINES AND GEOLOGY KANIJA BHAVAN BENGALURU-560 001 ... RESPONDENTS (BY SHRI. V.G. BHANUPRAKASH, AGA) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED REJECTION ORDER DATED 1.12.2011 ISSUED BY R-3 AT ANNEX-C AND RECONSIDER THE APPLICATION DATED 11.1.2010 AS PER ANNEX-A, BY GRANTING LEASE IN FAVOUR OF THE PETITIONER IN RESPECT OF THE SCHEDULE PROPERTY WITHIN A TIME FRAMED PERIOD.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE CHIEF JUSTICE MADE THE FOLLOWING:
ORDER The petitioner, who is a businessman carrying on business of minor minerals of building stone made an application on 11th January 2010 under the provisions of the Karnataka Minor Mineral Concession Rules, 1994 (for short ‘the said Rules’) for grant of quarrying lease/licence for building stone. In this petition filed under Article 226 of the Constitution of India filed on 10th August 2018, a prayer is made for quashing the order of rejection dated 1st December 2011 by which the application made on 11th January 2010 was rejected. The contention raised in this petition is that the rejection was not communicated and only after making an application under the Right to Information Act, 2005 (for short ‘RTI Act’), the petitioner obtained a copy of the rejection order dated 1st December 2011 in the year 2018.
2. There are objections filed by the State Government to the writ petition. The first contention therein is that the petition suffers from gross delay and that the rejection order was sent to the petitioner by registered post. A copy of the postal receipt dated 7th December 2011 issued by the concerned post office is also annexed to the objections.
3. The submission of the learned counsel appearing for the petitioner is that issue of delay will not arise for two reasons. The first is that as held by this Court, it was the duty of the concerned authority to call for the reports for dealing with the application for grant of quarrying lease. He urged that the concerned authority was duty bound to dispose of the application within 120 days as provided in Sub-Rule (2) to Rule 14 of the said Rules. He submitted that there is a default on the part of the concerned authorities in discharging their duties under the said Rules and therefore, the delay should not come in the way of the petitioner. Secondly, it is pointed out that acknowledgment of the service of the order of rejection is not produced by the respondents and only a receipt is produced to show that the order of rejection was sent by registered post. The learned Counsel for the petitioner submitted that the deposit amount paid by the petitioner along with the application has not been refunded. He further submitted that when the default is on the part of the respondents, no question arises of considering the plea of delay. He also submitted that the fact that petitioner is an agriculturist is required to be taken into consideration.
4. We have given our careful consideration to the submissions of the learned counsel. Firstly we must note that the petitioner is a resident of Bengaluru and as stated in paragraph No.3 of the petition, he is a businessman carrying on the business of minor minerals of building stones. In paragraph No.4 of the petition, he has stated that though application for grant of quarrying lease was made on 11th January 2010, very recently, he inquired about the status of the application which was pending before the third respondent. Thus after making the application on 11th January 2010, for the first time in April 2018, after a lapse of eight years that the petitioner claims to have made an enquiry with the third respondent. It is claimed that at that time, the petitioner was orally informed that application was rejected on 1st December 2011. It is not the case of the petitioner that within the span of eight years, he made any enquiry about the status of his application.
5. As stated earlier, even according to the case of the petitioner, the first enquiry made by the petitioner after filing the application was after expiry of a period of eight years from the date of application. The petitioner has not disclosed the date on which he applied under RTI Act for grant of copies of the order rejecting the application for grant of minor lease.
6. It is well settled that a remedy under Article 226 of the Constitution of India is discretionary and equitable remedy. In the case of State Of Orissa & Anr vs Mamata Mohanty1, the Apex Court held that though Section 3 of the Limitation Act, 1963 does not apply in writ jurisdiction, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are liable to be dismissed at initial state on the ground of delay and latches.
1 (2011)3 SCC 436 7. In the case of Bangalore City Co-operative Housing Society Ltd Vs. State Of Karnataka And Others2 the Apex Court after noting that the framers of Constitution have not prescribed any period of limitation for invoking constitutional remedies, observed that the rule of not entertaining writ petitions under Article 226 of the Constitution on the ground of delay is a self-imposed restraint evolved by the superior Courts. The Apex Court held that the jurisdiction under Article 226 of the Constitution being essentially an equity jurisdiction, the same cannot be exercised in favour of a person who approaches the Court after a long lapse of time when no cogent explanation is offered for the long delay in approaching the writ Court.
8. Coming back to the facts of the present case, there is not even an attempt made by the petitioner to explain 2 (2012)3 SCC 737 the delay of eight years. As stated earlier, it took a period of more than eight years to the petitioner even to make the first enquiry about the outcome of the application made by him. The petitioner is in the business of minor minerals of building stone. Therefore, this is a case, where there is a very long unexplained delay in filing the present writ petition. Considering this conduct of the petitioner, we are of the view that it is not a fit case where petitioner should be allowed to invoke the writ jurisdiction under Article 226 of the Constitution of India. Only on that ground, the petition is rejected.
Sd/- CHIEF JUSTICE Sd/- JUDGE SPS