IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH 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. 28471/2018 (GM-MM-S) BETWEEN M/S. SRI VIGNESHWARA GRANITE INDUSTRY PLOT NO.134, 2ND PHASE OPP CENTRAL WAREHOUSE ANTHARASANAHALLI INDUSTRIAL AREA TUMKUR-572101 REPRESENTED BY ITS PROPRIETOR SHRI S G CHANDRAMOULI ... PETITIONER (BY SRI D L N RAO, SENIOR COUNSEL FOR SRI L M CHIDANANDAYYA, ADVOCATE FOR SMT. KUSUMA R. PRASAD, ADVOCATE) AND 1.THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY COMMERCE & INDUSTRIES DEPARTMENT (SSI, MINES & TEXTILES) VIKASA SOUDHA BANGALORE-560001 2.THE DIRECTOR DEPARTMENT OF MINES & GEOLOGY KHANIJA BHAVAN BANGALORE-560001 3.DEPUTY COMMISSIONER TUMKUR DISTRICT TUMKUR-572101 4.DEPUTY DIRECTOR DEPARTMENT OF MINES AND GEOLOGY TUMKUR-572101 ... RESPONDENTS (BY SRI VIKRAM HUILGOL, HCGP FOR R-1 TO 4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER ANNEXURE-A DATED 06.06.2018 PASSED BY THE 1ST RESPONDENT AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING:
ORDER The submissions were heard on the earlier date. Certain factual details are necessary to understand the controversy involved in the writ petition. The petition arises out of an application made by the petitioner for grant of quarrying lease in respect of the subject property on 22nd July 2010. An endorsement dated 21st March 2014 was issued by the Director of the Mines and Geology Department rejecting the application for grant of quarrying lease. The petitioner filed a revision application. On the basis of the order passed in the revision application, the application of the petitioner was ordered to be placed before a Committee constituted in accordance with Rule 11 of the Karnataka Minor Mineral Concession Rules, 1994 (for short ‘the said Rules’) as it stood prior to 12th August 2016. Rule 11 Committee issued an endorsement that the revision petition was not maintainable. After the petitioner approached this Court, there was an order of remand to the Revisional Authority. The revision petition was allowed by the order dated 5th March 2016 and the application made by the petitioner was directed to be placed before the Committee constituted in accordance with Rule 11 of the said Rules. Before the Committee constituted under Rule 11 could consider the issue of making a recommendation, there was an amendment made to the said Rules with effect from 12th August 2016 and therefore, the said Committee ceased to function. By the order dated 6th June 2018, the revision petition was rejected. The Revisional Authority relied upon the report of the Deputy Commissioner dated 18th December 2015 by which, the other applications for grant of quarrying lease were recommended to be rejected. The Revisional Authority also relied upon the report dated 4th October 2017 of the Deputy Commissioner. Apart from that, it was observed that there is an ancient temple situated about 80 metres from the schedule land. A conclusion was recorded that on an agricultural land, no quarrying activity can be permitted. The issue of overlapping was also raised.
2. The main submission of the learned Senior Counsel appearing for the petitioner is that in June 2012, the Deputy Conservator of Forests had issued no objection for grant of quarrying lease. Moreover, on 6th June 2014, the Deputy Commissioner also submitted a report recording no objection for grant of quarrying lease. He also pointed out that a joint inspection report as contemplated by clause (iv) of sub-rule (5) of Rule 8 of the said Rules was also available. On a query made by this Court, the learned High Court Government Pleader stated that the no objection granted by the Deputy Conservator of Forests was not modified subsequently.
3. The submission of the learned Senior Counsel appearing for the petitioner is that thus all the procedural formalities were completed before 12th August 2016 and therefore, the order granting quarrying lease ought to have been passed. He submitted that the first respondent could not have relied upon the subsequent report dated 4th October 2017 of the Deputy Commissioner.
4. We have given careful consideration to the submissions. As noted earlier, on more than one occasion, the petitioner was forced to approach this Court. Firstly, W.P.No.31946/2014 was filed in this Court for challenging the endorsement of rejection. This Court permitted the petitioner to avail of the remedy of revision under Rule 53 of the said Rules. Secondly, a Division Bench of this Court passed an order on 7th November 2016 in W.P.No.54390/2016 filed by the petitioner directing the State Government to consider the application of the petitioner for grant of quarrying lease within a period of six weeks from the date of communication of the said order. In fact, the specific prayer in the said writ petition was that the application made by the petitioner must be treated as a valid application in accordance with clause (b) of sub-rule (2) of Rule 8-B of the said Rules as amended on 12th August 2016. After the said order was passed by this Court, in fact, the only enquiry which ought to have been made was whether the case of the petitioner was governed by any of the clauses (a) to (d) or (d-1) of sub-rule (2) of Rule 8-B. Perusal of the order of the first respondent shows that the scope of enquiry was widened and the case of the petitioner about the applicability of sub-rule (2) of Rule 8-B was not at all considered in accordance with law. As far as Rule 8-B as amended with effect from 12th August 2016 is concerned, the law is laid down by a Division Bench of this Court by the judgment and order dated 16th August 2019 in W.P.No.10601/2019 and connected cases. In paragraph 47 of the said decision, conclusions were recorded by the Division Bench which read thus:
“47. In short the conclusions can be summarized as under:
(a) Rule 8-B of the said Rules, as amended on 12th August 2016 is constitutionally valid;
(b) All pending applications for grant of mining leases/licences under the said Rules which were filed before 12th August, 2016 and pending on the said date shall become automatically ineligible unless the cases specifically fall within any of the exceptions specifically carved out in clauses (a) to (d) and (d-1) of sub-rule (2) of Rule 8-B.
(c) Only those application which were filed before 12th August, 2016 to which any of the clauses (a) to (d) and (d-1) of sub-rule (2) of Rule 8-B applies, can be decided in accordance with the Rules prevailing prior to 12th August, 2016;
(d) While deciding the question whether clauses (a) to (d) and (d-1) of sub-rule (2) of Rule 8-B are attracted, if any deeming fiction providing for grant of deemed no objection certificates is expressly available under any of the express provisions of the said Rules such as sub-rule (6) of Rule 8, the same could be applied;
(e) In view of express provisions of sub-rule (1) and (2) of Rule 8-B, merely because there is a failure on the part of the authorities to obtain clearances/no objection certificates/reports, the mandate of sub-rule (1) of Rule 8-B cannot be ignored and it shall apply with full force inasmuch as by sub-rule (1) of Rule 8-B, all applications received prior to 12th August, 2016 were made ineligible. The only exception provided is in the sub-rule (2) in case of the applications which are governed by clause (a) to (d) and (d-1) of sub-rule (2). No other exception to sub-rule (1) of Rule 8-B has been provided in the said Rules and therefore, cannot be carved out by the Court.”
5. The contention of the petitioner based on the documents on record is that all the no objection certificates and all the reports as required by sub-rule (5) of Rule 8 were available before 12th August 2016. In fact, he is placing reliance on the no objection issued by the Deputy Conservator of Forests in June 2012 and the no objection issued by the Deputy Commissioner on 6th June 2014 as well as the joint inspection report. In the circumstances, the case of the petitioner will have to be reconsidered in the light of the said three documents and also in the light of the aforesaid law laid down by this Court on Rule 8-B of the said Rules.
6. While we do so, we make it clear that the issue of the applicability of the outer limit of 24 months as provided in clause (e) of sub-rule (2) of Rule 8-B remains open.
7. Accordingly, we pass the following order:
(i) The impugned order dated 6th June 2018 is hereby quashed and set aside;
(ii) We direct the first respondent or the Competent Authority to consider the application dated 22nd July 2010 in accordance with law in the light of the applicability of sub-rule (2) of Rule 8-B of the said Rules as amended on 12th August 2016. The concerned authority is bound to consider the case made out by the petitioner that prior to 12th August 2016, the no objection certificates of the Deputy Conservator of Forests and the Deputy Commissioner were already issued and even the joint inspection report was available on record;
(iii) An appropriate order shall be passed within a period of three months from today;
(iv) As observed earlier, the issue of applicability of the outer limit of 24 months provided in clause (e) of sub- rule (2) of Rule 8-B is kept open;
(v) We make it clear that the impugned order is set aside only insofar as the present petitioner is concerned and as regards Sri T.Chandrashekhar, the impugned order stands;
(vi) Writ petition is allowed on the above terms.
Sd/- CHIEF JUSTICE Sd/- JUDGE bkv